People v Raydon
Annotate this CaseDecided on September 14, 2012
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Rue Raydon, Defendant
2012QN031133
Kevin Costello, Attorney at Law, for the Defendant.
Richard A. Brown, District Attorney, Queens County, (Karlton Jarrett of counsel), for the People.
Gia L. Morris, J.
In an accusatory instrument filed on June 8, 2012, the defendant, Rue Raydon, is charged with violating NY Penal Law §221.10(1), Criminal Possession of Marijuana in the Fifth Degree. Defendant Rue Raydon now moves for dismissal of the instant matter on the grounds that the misdemeanor information filed against him is facially insufficient, or in the alternative for a Dunaway/Mapp hearing.
In determining the instant motion, this Court has considered the Defendant's moving papers dated July 23, 2012, the People's response dated September 5, 2012 and papers on file with the Court.
The following is the decision and order of the Court.
I.Statement of facts
A review of the Court's file indicates that defendant was arrested at about 6:21 PM on June 7, 2012, by a New York City Police Officer at the intersection of Brooklyn Queens Expressway and Astoria Boulevard, County of Queens, State of New York after the Police Officer observed and recovered a quantity of marijuana from the center console of a vehicle in which the Defendant was a passenger. The defendant was arraigned on June 8, 2012 and charged with violating NY Penal Law §221.10(1) Criminal Possession of Marihuana in the Fifth Degree. The People announced ready at arraignment and the case was adjourned for counsel to be assigned. On July 18, 2012, counsel for the defendant indicated he intended to file motions with respect to the this matter, and the case was adjourned until September 17, 2012 for decision
II.Motion to Dismiss for Facial Insufficiency
The defendant moves for dismissal of the misdemeanor information on the grounds that it is not facially sufficient, pursuant to NY C.P.L. §§100.40, 170.30, and 170.35. While [*2]acknowledging the Court of Appeals recent decision in People v. Jackson, 19 NY3d 738, 944 N.Y.S.2d 715 (2012), the defendant argues that the misdemeanor information is deficient because it does not allege that the center console was open or that the marihuana was in public view, nor does it set forth whether the marihuana was contained in packaging that was visible to the public without being opened. See Defendant's Notice of Motion dated July 23, 2012 at ¶5.
When determining whether a misdemeanor information is facially sufficient at the pleading stage, the Court of Appeals recently held that an information is valid provided that "it contains nonconclusory factual allegations that, if assumed to be true, address each element of the crime charge, thereby affording reasonable cause to believe that the defendant committed that offense." Jackson, 18 NY3d at 741, 944 N.Y.S.2d at 717. This is consistent with the well-settled law in this area. See e.g. People v. Kalin, 12 NY3d 225, 230, 878 N.Y.S.2d 653, 656 (2009) (citations omitted)("a prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial."), People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91 (2000)(courts should review accusatory instruments in a "fair and not overly restrictive or technical reading"); People v. Allen, 92 NY2d 378, 385, 681 N.Y.S.2d 216, 220-22 (1998) ( finding that as long as the factual allegations are sufficiently evidentiary in character and tend to support the charges, the complaint is facially sufficient). As such, in determining whether an accusatory instrument is facially sufficient, a 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), 862 N.Y.S.2d 816, 2008 NY Slip Op. 50814 (U) (Crim Ct NY Co 2008).
A person is guilty of Criminal Possession of Marihuana in the Fifth Degree when he knowingly and unlawfully possesses marihuana in a public place where such marihuana is burning or open to public view. NY Penal Law §221.10(1). In reviewing the public component of the statute, the Court of Appeals recently determined that a driver of a vehicle on a public roadway can be found to be liable if the marihuana is visible from outside the vehicle. Jackson, 18 NY3d at 743-44, 944 N.Y.S.2d at 719. In Jackson, the accusatory instrument in question alleged that an officer approached a vehicle and smelled the odor of marihuana emanating and observed the defendant holding marihuana in his hand open to public view. Id. at 747, 944 N.Y.S.2d at 721-22. The Court found the accusatory instrument to be sufficient because:
although the officer did not describe the precise location of the defendant's hand, since she was standing outside the vehicle when she saw the substance in the zip lock bag, these allegations support the inference that any other member of the public could also have seen the marihuana from the same vantage point — meaning that the marihuana was in an unconcealed area of the vehicle that would have been visible to a passerby or other motorist.
Id. at 747-748, 944 N.Y.S.2d at 722. Further, while acknowledging the complaint was not "the model of specificity", the Court of Appeals nevertheless found the complaint to be facially sufficient. Id at 747, 944 N.Y.S.2d at 721.
The facts of the instant matter are analogous. Here, the defendant was arrested after a police officer observed and recovered a quantity of marihuana in the center console of a vehicle [*3]in which the defendant was a passenger. See Misdemeanor Information. While the defendant contends that the center console must have been a closed compartment, no such assumption can be made. See Defendant's Notice of Motion dated July 23, 2012 at ¶5. While not binding on this court, a review of appellate case law reveals that a center console can, in fact, be in plain view. See e.g. People v. Martin, 50 AD3d 1169, 1171, 854 N.Y.S.2d 789, 792 (3d Dept 2008)(finding probable cause to search vehicle where a Styrofoam cup of alcohol found in the center console in plain view, along with other indicia of intoxication noted); People v. Phillips, 46 AD3d 1021, 1021-22,847 N.Y.S2d 688, 689 (3d Dept 2007) (small knife and small baseball bat observed by the police officer in the front console during a car stop were in plain view).
In the instant matter, while the misdemeanor information could have been worded more clearly, when viewed in the light most favorable to the people, and applying every reasonable inference therein, it is facially sufficient. Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816.
Accordingly, the defendant's motion to dismiss is denied.
III.Motion to Suppress Physical Evidence
Based upon the papers filed in this matter, the defendant was arrested on June 7, 2012, by an officer of the New York City Police Department at the intersection of the Brooklyn Queens expressway and Astoria Boulevard, County of Queens, New York. At the time of his arrest, the Police Officer observed and recovered a quantity of marihuana in the center console of the vehicle in which the defendant was a passenger. See Misdemeanor Information. The defendant states that the arresting officer did not observe the defendant commit any crime, nor did he observe the defendant do anything that might reasonably have aroused police suspicion. He further contends that the arrest was an illegal police action and in violation of defendant's rights and therefore any physical evidence, specifically a quantity of marihuana, should be suppressed. See Defendant's Attorney Affirmation at ¶12, 13. The People's response does not address this portion of the defendant's motion.
The defendant's motion to suppress all physical evidence is granted to the extent that a Mapp/Dunaway hearing [Mapp v. Ohio, 367 U.S. 643 (1961), Dunaway v. New York, 442 U.S. 200 (1979)] is granted to determine the admissibility of the physical evidence allegedly recovered in the defendant's custody or control. This motion is otherwise held in abeyance pending the hearing and is referred to the hearing judge for determination.
This constitutes the Decision and Order of the Court.
Dated: September 14, 2012
SO ORDERED:
_________________________
HON. GIA L. MORRIS
Judge of the Criminal Court
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