People v Portorreal

[*1] People v Portorreal 2009 NY Slip Op 52485(U) [25 Misc 3d 1238(A)] Decided on December 10, 2009 Criminal Court Of The City Of New York, Queens County Koenderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2009
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Wilnara Portorreal, Defendant.



2009QN039176

Elisa S. Koenderman, J.

The defendant, Wilnara Portorreal, is charged with Criminal Possession of Marihuana in the Fourth Degree, Penal Law ["PL"] § 221.15, Endangering the Welfare of a Child, PL § 260.10(1) and Unlawful Possession of Marihuana, PL § 221.05. The defendant has moved in an omnibus motion to dismiss the charges for facial insufficiency and for other relief. On October 5, 2009, the Court rendered a written decision and order with respect to all branches of the defendant's motion except that pertaining to facial insufficiency. On that same date, the Court orally denied the defendant's motion to dismiss for facial insufficiency. The following written decision explains the basis for the Court's latter ruling.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see People v Casey, 95 NY2d 354, 356 [2000]; Alejandro, 70 NY2d at 137-138).

Reasonable cause to believe that the defendant committed the offense charged exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL § 70.10[2]). The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138,quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the [*2]burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (Casey, 95 NY2d at 360; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). Ultimately, "the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The instant information alleges that at about 8:20 a.m. on April 1, 2009, Police Officer Nicholas Alexakis of the Queens Narcotics Borough executed a search warrant at the ground floor of 161-08 43rd Avenue in Queens County. Prior to entering the location, the officer observed the defendant enter the premises. Further, upon entering the premises, Officer Alexakis smelled a strong order of marihuana emanating from the premises. The officer observed separately-apprehended Giovanni Portorreal, to whom the defendant stated she was married, lying on a bed in one of the bedrooms. Officer Alexakis recovered two large ziplock bags containing marihuana from a dresser next to a bed. Inside one of the ziplock bags was approximately $100 in US currency. From the same dresser, the officer also recovered approximately fifteen (15) clear plastic or glass tubes, each containing marihuana. Officer Alexakis additionally recovered approximately 135 empty clear plastic or glass tubes from the premises, about half of which were found in the bedroom dresser and the other half in a kitchen cabinet. From on top of a kitchen cabinet, directly below the ceiling, the officer recovered a plastic container containing two smaller ziplock bags of marihuana as well as numerous empty ziplock bags and a digital scale. Officer Alexakis concluded that the substance recovered was marihuana with an aggregate weight of more than two ounces based upon his training and experience as a police officer in the identification and packaging of controlled substances and marihuana. In fact, separately-apprehended Giovanni Portorreal admitted that the marihuana in the ziplock bags recovered from the bedroom dresser weighed approximately two ounces. While Officer Alexakis was executing the search warrant, he observed "a female toddler" in another bedroom. According to Officer Alexakis, all of the areas from which the marihuana and other paraphernalia were recovered "were unsecured and accessible to all occupants" of the premises. The defendant admitted that she is married to separately-apprehended Giovanni Portorreal and that she lives in the premises with him and their children, including the female toddler, whom she identified as their three year old daughter Disely Portorreal.

The defendant argues that the charge against her of Endangering the Welfare of a Child must be dismissed since she "entered the apartment contemporaneously with [*3]the police when they executed their search warrant" and therefore "could not have been smoking marihuana in front of her child." Additionally, she contends that the charge against her of Criminal Possession of Marihuana in the Fourth Degree and Unlawful Possession of Marihuana must be dismissed because "she had just entered the premises," "none of the marihuana was found in open view" and the information does not allege that she was in the same rooms from which the marihuana was recovered.

Under Penal Law § 221.15, "a person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces." Under Penal Law § 221.05, "a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana." Under Penal Law § 10.00, to "possess" means to have physical possession of or dominion and control over tangible property. In this case, the defendant is alleged to have constructively possessed the marihuana seized from her residence.

Constructive possession requires more than mere presence in a location where contraband is discovered. "In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992], citing People v Pearson, 75 NY2d 1001, 1002 [1990]; see also People v DeJesus, 44 AD3d 464, 467 [1st Dept 2007]). A defendant's knowledgeable possession of contraband may be established by circumstantial evidence demonstrating the defendant's control over premises where the contraband is found (see People v Tirado, 47 AD2d 193, 194-195 [1st Dept 1975], aff'd, 38 NY2d 955 [1976]).

Under Penal Law § 260.10(1), "a person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health."

The aim of the Endangering the Welfare of a Child statute is to protect "the physical health, morals and well-being of children . . . ." (People v Bergerson, 17 NY2d 398, 401 [1966]). The statute is broad in scope and is not limited to protection against the perpetration of sexual offenses upon children but in fact extends "to other dangers as well" (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 [Crim Ct, NY County 1991]). Moreover, as "the care of children is a sacred trust" (New York v Ferber, 458 US 747, 757 [1982]), a court cannot and should not "await broken bone or shattered psyche before extending its protective cloak around [a] child" (In the Matter of Priscilla Cruz, 121 AD2d 901, 903 [1st Dept 1986]). The role of the court as the protector of children is "a role as essential as protecting the rights of the accused [because] the courts have a compelling duty to protect the interests of children" (People v Doe, 137 Misc 2d 582, 585 [Crim Ct, NY County 1987]).

In order to sustain a conviction for Endangering the Welfare of a Child, the People need not prove that the defendant committed an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Johnson, 95 NY2d [*4]368, 371-372 [2000]). Furthermore, actual harm to the child need not result from the defendant's actions for criminal liability to attach (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]). Penal Law § 260.10(1) proscribes conduct "which a defendant knows will present a likelihood' of harm to a child (i.e., with an awareness of the potential for harm" (id. at 372) (emphasis added). Therefore, "a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not" (id., citing PL § 15.05[2]; see also People v Simmons, 92 NY2d 829, 830 [1998]). Additionally, the harm as a result of the defendant's actions must be likely and not merely possible (see id. at 371; Duenas, 190 Misc 2d at 803).

The offense of Endangering the Welfare of a Child may be committed by one act or by multiple acts and may be characterized as a continuing offense over a period of time (see People v Keindl, 68 NY2d 410, 421 [1986]). Hence, a defendant may be guilty of this offense by committing "a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime" (id.; see also Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Similarly, simultaneously coexisting events and circumstances, when taken as a whole, may constitute Endangering the Welfare of a Child, even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007]).

In reviewing a charge of Endangering the Welfare of a Child for legal sufficiency, "each case is fact specific" (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of "the whole incident" (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the "confluence of events and circumstances" (Hitchcock,98 NY2d at 591), including both the defendant's acts and his omissions (see Cowley, 83 NY at 472). Some examples of conduct which has been held likely to be injurious to the physical, mental or moral welfare of children include possessing loaded and unloaded firearms and ammunition which were fully accessible to children (see Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children (see Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (see Simmons, 92 NY2d at 831); and providing beer to teenaged boys (see Bergerson, 17 NY2d at 403).

Here, the aggregate weight of the marihuana seized exceeded two ounces. The nature and quantity of the marihuana was such that Officer Alexakis smelled its "strong odor" as he entered the premises. The presence of so much marihuana in close proximity to materials suitable for packaging and weighing it - 135 clear tubes, numerous ziplock bags and a digital scale - suggests that the marihuana was being packaged for sale in the apartment. Moreover, the vast number of packaging materials recovered, considered in conjunction with the sum of US currency found in one of the large bags of marihuana, bolsters the inference that the marihuana was not possessed for mere personal use by the occupants of the premises but in fact was possessed with the intent to prepare and package it for sale. Finally, regardless of the fact that the drugs and paraphernalia were in closed containers at the time they were recovered, given the quantity of materials involved, it is reasonable to infer that the preparation and packaging of the marihuana for sale was taking place in open view of the occupants of the premises, including the children. [*5]

It may be presumed that as an adult residing in the premises, the defendant had both knowledge and possession of the marihuana found there (see Tirado, 47 AD2d at 195). "Possession generally suffices to permit an inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle or on his premises" (id., citing People v Reisman, 29 NY2d 278, 286-287 [1971]). In particular, where narcotics are found on premises under a defendant's control, it may be inferred that the defendant had knowledgeable possession of the narcotics (see id. [internal citations omitted]). This inference is largely based upon the nature of the commodity and the manner in which it is trafficked (see id.). Narcotics are of great value to the person possessing them because of the exorbitant sums for which they are sold on the black market (see id.). Moreover, since mere possession of narcotics may subject a person to severe criminal consequences, the trafficking of narcotics is conducted with extreme care and secrecy (see id.). Consequently, "human experience teaches us that narcotics are rarely, if ever, found unaccountably in a person's living quarters" (id.). Although marihuana is not a narcotic drug[FN1], it is an illegal drug which is similarly trafficked. Indeed, the facts alleged in the instant case demonstrate that the marihuana was possessed for purposes of sale. Because the marihuana was found in the defendant's living quarters, she is presumed to have knowingly possessed it. The fact that the defendant's husband also lived on the premises and admitted to knowledge of the marihuana does not negate the defendant's possession of the marihuana since "possession if joint is no less possession" (People v Tirado, 38 NY2d 955 [1976]).

As the mother of her children, over whom she has both physical custody and legal guardianship, the defendant is responsible for their physical and emotional well-being and has a duty to protect them from harm (see e.g., In re Harmony S, 22 AD3d 972, 973 [3d Dept 2005]). By knowingly allowing her three year old daughter to remain on premises where a substantial amount of marihuana was present under circumstances which suggest that it was being prepared and packaged there for sale, the defendant engaged in conduct likely to be injurious to her child's moral welfare. Because the facts alleged support the inference that the marihuana was being packaged for sale on the premises, it is reasonable to infer that the defendant's three year old daughter, who lived on the premises, was aware of and exposed to the presence of the marihuana. Exposure to illegal drugs such as marihuana creates a risk of moral harm to a child. "When a child of an impressionable age, who is capable of absorbing all of his or her surroundings, is in the presence of such substances, there is a real likelihood that he or she will come to view such illegal substances as common household items" (People v Jones, 2009 NY Slip Op 29382 [Crim Ct, NY County 2009]). Simply because her daughter may have been too young to fully understand what she was seeing does not diminish the risk of moral harm (see Simmons, 92 NY2d at 831 ["the jury therefore may reasonably have concluded that the totality of the defendant's remarks . . . would have combined to create a likelihood of harm, regardless of the [*6]child's current level of understanding" [emphasis added]). Moreover, the defendant's conduct created a risk of physical harm to her three year old daughter as well. Officer Alexakis attested that the at the time they were seized, the drugs and paraphernalia were accessible to all of the occupants of the premises. Although the marihuana was recovered from areas which are above the height of a three year old child, the marihuana was not secured or locked in any of those locations. It is fair to assume that like most three year old children, the defendant's daughter could walk and climb and that therefore she could put herself within reach of the marihuana. Ingestion of toxic substances is a common occurrence with children of this age (Michael Shannon, Ingestion of Toxic Substances by Children, The New England Journal of Medicine, Jan. 20, 2000, Vol. 342:186-191, No. 3, available at http://content.nejm.org/cgi/content/extract/342/3/186 ["ingestion of a harmful substance is among the most common causes of injury to children less than six years of age"]). Had the defendant's daughter come upon the marihuana, she could have eaten it and become ill.

Because the non-hearsay factual allegations of the information and reasonable inferences to be drawn from them, when viewed in the light most favorable to the People (see Barona, 19 Misc 3d at 1), establish that the defendant knowingly and unlawfully possessed marihuana with an aggregate weight of more than two ounces, and that she knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old, the charges of Criminal Possession of Marihuana in the Fourth Degree, Endangering the Welfare of a Child and Unlawful Possession of Marihuana are facially sufficient. (see People v Casey, 95 NY2d 354, 360 [2000]; People v Kalin, 12 NY3d 225, 231 [2009]). While the People must still meet their burden of proof beyond a reasonable doubt at trial, they have satisfied their much lower burden at the pleading stage. The defendant's motion to dismiss therefore is denied.

This constitutes the decision and order of the Court.

Dated:December 10, 2009

Queens, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: See People v Rivera, 21 Misc 3d 588, 591-592 (Crim Ct, NY County 2008). A narcotic drug is defined in Penal Law § 220.00(7) as "any controlled substance listed in schedule I(b), I(c), II(b) or II(c) [of the public health law] other than methadone." Marihuana is not listed in the applicable subsections of either schedule.