Opinion
2009QN042810.
Decided December 14, 2009.
The defendant, Frank Santiago, is charged with Criminal Possession of Marihuana in the Fifth Degree, Penal Law [" PL"] § 221.10(1), under the theory that he knowingly and unlawfully possessed marihuana in a public place where the marihuana was open to public view. In sum, the defendant is accused of being a passenger in a vehicle on the street from which the arresting officer recovered one zip lock bag of marihuana from the center console. Because this Court finds that these factual allegations are insufficient to establish the requisite element that the marihuana was open to public view at the time it was possessed, the accusatory instrument is dismissed as facially insufficient.
The defendant has moved for dismissal on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law ["CPL"] § 30.30(1)(c), alleging that more than sixty days have elapsed since his arraignment on August 5, 2009. The defendant argues that since the accusatory instrument is jurisdictionally defective, the People's statement of readiness was illusory and therefore all time from arraignment to the first adjournment date of October 5, 2009 is chargeable to the People ( see People v Sherman , 24 Misc 3d 344, 351 [Crim Ct, NY County 2009]). A close review of the record, however, including the minutes of the arraignment, establishes that regardless of the People's statement of readiness, all time from arraignment to date is excludable pursuant to statutory exception ( see CPL § 30.30[4][b]). At arraignment on August 5, 2009, the complaint was deemed an information without objection by the defense, the People answered ready and the matter was adjourned with the time for filing of motions tolled by the Court until October 5, 2009. Pursuant to CPL §§ 710.40(1), 255.20(1), the defendant is required to file motions within 45 days of arraignment. The adjournment from August 5, 2009 to October 5, 2009 benefitted the defendant because it in effect extended the period of time in which he could file motions and afforded him the opportunity to work out a possible disposition without first having to file motions. Indeed, although the adjournment was not expressly given for possible disposition on consent, this is the implied purpose of an adjournment where defense motions are tolled. Because the defendant acquiesced in the adjournment for this purpose, it is excludable pursuant to CPL § 30.30(4)(b) irrespective of the People's readiness ( see People v Worley, 66 NY2d 523, 525 [1985] [delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People]; see also People v Douglas, 209 AD2d 161, 162 [1st Dept 1994] [while a defendant's pretrial motion is sub judice, that period of delay is excludable regardless of the People's readiness or unreadiness at the time]). The adjournment from October 5, 2009 to December 14, 2009 is similarly excludable under CPL § 30.30(4)(a) as a period of delay under which pretrial motions are under consideration by the Court.
FACIAL SUFFICIENCY
In order to be facially sufficient, an information must substantially conform to the formal requirements of 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, 100.40; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect ( see People v Casey, 95 NY2d 354, 356; 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 pf 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). 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, quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v Henderson, 92 NY2d 677, 680; 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 ; People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733; People v Shea, 68 Misc 2d 271, 272; People v Scott , 8 Misc 3d 428, 429). 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 information alleges that at approximately 4:55 p.m. on August 4, 2009, at the northeast intersection of Metropolitan Avenue and Pleasantview Street in Queens County, Detective Craig Rosenberg observed the defendant and co-defendant Victor Perez "in possession of [marihuana] in a public place open to public view" and that Det. Rosenberg "recovered one zip lock bag of [marihuana] from the center console of a gray Nissan . . . in which [the] defendant was [sitting in] the front passenger [seat] and [co-defendant] Perez was the driver."
A person is guilty of Criminal Possession of Marihuana in the Fifth Degree when he knowingly and unlawfully possesses marihuana in a public place and where the marihuana is either burning or open to public view (PL § 221.10). Under Penal Law § 240.00(1), a "public place" is defined as "a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." The term "public place" is defined "very broadly" under this section (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.00, at 332). "That a member of the public may pass by is . . . the essence of a public place" ( People v McNamara, 78 NY2d 626, 633). Indeed, the broad definition of a "public place" "encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective circumstances establish that the interior can, and likely would, be able to be seen by the casual passerby" ( People v Gutierrez, 21 Misc 3d 1129 [A], 2008 WL 4889145, 2 [Crim Ct, NY County 2008], citing McNamara, 78 NY2d at 633; see also People v Ochoa, 23 Misc 3d 1102 [A], 2009 WL 837671, 3 [Crim Ct, NY County 2009] ["an object which is exposed in a location within a car which is observable to passersby is likewise open to public view'"]; People v Watkins, 20 Misc 3d 1117 [A], 2008 WL 2699445, 3 [Crim Ct, NY County 2008]). The Court takes judicial notice that Metropolitan Avenue and Pleasantview Street are city streets to which the public has access. The reasonable inference to be drawn from the fact that Det. Rosenberg observed the marihuana "at" the intersection of Metropolitan Avenue and Pleasantview Street is that the vehicle was on the street at that address. Therefore, the information adequately pleads that the defendant possessed the marihuana in a public place, namely in a vehicle on a city street.
The Court may take judicial notice of matters of common knowledge ( see e.g., Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963]; People v Darby, 263 AD2d 112, 114 [1st Dept 2000]; see also Prince, Richardson on Evidence § 2-203 [Farrel 11th ed]).
Nevertheless, notwithstanding the fact that the vehicle on the street in which the defendant allegedly possessed the marihuana constitutes a "public place," it cannot be inferred that the marihuana was "open to public view." Rather, the reasonable inference to be drawn from the factual allegations is that the marihuana was not visible to the public since it was recovered from a center console, which is presumed to be a closed compartment ( see e.g., People v DiMatteo , 62 AD3d 418, 419 [1st Dept 2009]; People v Confessore, 12 Misc 3d 1192 [A], 2006 NY Slip Op 51537[U] ["in order to search the closed center console it was necessary for [the officer] to open the console's lift top"]; People v Diggins, 2009 WL 3212447, 5 [Ill]; State v Henning, 289 Kan 136, 138; State v Ellis, 205 P3d 791, 2009 WL 1036110, 3, 4 [Kan App]; Vines v State, 296 Ga App 543, 544; Strikertaylor v State, 997 So 2d 488, 489 [2d Cir 2008]). The assertion that the marihuana was "open to public view" merely tracks the statutory language of Penal Law § 221.10(1) and is conclusory. Had the information specifically stated that the marihuana was "on top of" the center console, that would have sufficed to demonstrate that the marihuana was open to public view. In a facial sufficiency review, however, the court is confined to the four corners of the accusatory instrument and may not import additional evidentiary facts into the complaint and supporting deposition beyond what is alleged ( see People v Thomas , 4 NY3d 143, 146). Because there are no evidentiary facts from which to infer that the marihuana allegedly possessed by the defendant was open to public view, the information fails to plead an essential element of the crime charged.
By statute, a defendant has the right to be prosecuted by an information ( see People v Weinberg, 34 NY2d 429, 431). The failure of an information to allege facts of an evidentiary character which support each and every element of the crime charged is a non-waivable jurisdictional defect ( see Alejandro, 70 NY2d at 133). Because the information fails to establish a prima facie case for the offense of Criminal Possession of Marihuana in the Fifth Degree, it is insufficient on its face and therefore is jurisdictionally defective ( see CPL §§ 100.40[c], 170.35[a]; see Alejandro, 70 NY2d at 133). Accordingly, the defendant's motion to dismiss is granted.
Because no time is chargeable to the People to date, they may file within the 60 day statutory speedy trial period ( see CPL § 30.30[1][c]) a new accusatory instrument against the defendant based upon the same criminal transaction, provided it contains sufficient evidentiary facts to support each and every element of the crime charged.
This constitutes the decision and order of the Court.