Opinion
2008NY045537.
Decided July 10, 2008.
For the People: ADA Carolina Holderness.
For the Defense: The Legal Aid Society, Erin Darcy, Esq.
The defendant, Ronnie Watkins, is charged with one count of Criminal Possession of Marihuana in the Fifth Degree (PL § 221.10) and one count of Unlawful Possession of Marijuana (PL § 221.05). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; suppression of statements and preclusion of prior bad acts. The court previously orally denied defendant's motion to dismiss for facial insufficiency. The following written decision explains the basis for the court's ruling.
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 and 100.40 [1]; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133).
The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone ( People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro 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]). Finally, 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" ( People v Casey, 95 NY2d 354, 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, 2005 NY Slip Op 25179 [Crim Ct NY County [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 1122A, 1 [Crim Ct, NY County 2008]).
The instant complaint alleges that at approximately 9:10 p.m. on June 17, 2008 "at 166 W.122nd Street" in New York County the deponent officer "observed the defendant holding marijuana which was burning" and that the officer thereafter "recovered a marijuana cigarette from the defendant's hand and loose marijuana from the vehicle in which the defendant was seated."
The defendant argues that the complaint fails to establish that the defendant possessed the alleged marihuana in a public place and that the marihuana was burning or open to public view. Thus he claims the charge against him of Criminal Possession of Marihuana in the Fifth Degree must be dismissed for facial insufficiency. The People counter that the charge is sufficient because it states that the deponent officer observed the defendant holding marihuana which was burning and subsequently recovered a marihuana cigarette from the defendant's hand. Further, the People contend that the complaint adequately alleges that the defendant possessed marihuana in a public place because "it specifies that the defendant was in a vehicle at the stated address."
Under PL § 221.10 (1), "a person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view." Article 240 of the Penal Law deals with Offenses Against Public Order. Pursuant to PL § 240.00 (1), under the definition of terms for that article, 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).
In People v McNamara ( 78 NY2d 626, 634) the Court of Appeals held that the interior of a vehicle which is "visible to a member of the passing public" and which is "situated in a place where it would likely be observed by such a person" is a "public place" under PL § 245.00 (a), Public Lewdness. In so holding, the Court declined to apply the "broad definition" of "public place" found in Article 240, Offenses Against Public Order, to Public Lewdness ( see McNamara, 78 NY2dat 633). It reasoned that Public Lewdness, as an offense under Article 245 which deals with Offenses Against Public Sensibilities, is a different class of crime from an offense like Disorderly Conduct under Article 240 ( see McNamara, 78 NY2dat 632). While Disorderly Conduct, PL § 240.20, requires an intent to cause public inconvenience, annoyance or alarm, the actor's intent is irrelevant to a determination of what is a public place under PL § 245.00 (a), Public Lewdness ( see McNamara, 78 NY2dat 630). Statutes like Public Lewdness which punish indecent exposure should be strictly construed to attack the particular evil at which they are directed ( see McNamara, 78 NY2dat 631). The evil at which PL § 245.00 (a) is directed is lewd acts rather than the culpable mental state of the person engaging in them ( see McNamara, 78 NY2d at 631). The aim of the statute, therefore, is to prevent harm to the public's sensibilities from the sight of lewd acts ( see McNamara, 78 NY2dat 632). Thus, the fact that a member of the public may pass by a particular location will not automatically render that location a "public place" under PL § 245.00 (a) ( see McNamara, 78 NY2d at 633). If it is unlikely that lewd acts committed at that location will be seen by a member of the public, the statute is not violated ( see McNamara, 78 NY2dat 633). Accordingly, the interior of a parked car is not "public place" under PL § 245.00 (a) unless "the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby" ( see McNamara, 78 NY2dat 633-634). In essence, for the interior of a parked car to be considered a public place for the purposes of Public Lewdness "more than public access to a street is necessary" ( see McNamara, 78 NY2dat 633).
In contrast to Public Lewdness, Criminal Possession of Marihuana in the Fifth Degree expressly incorporates the "broad definition" of "public place" found in PL § 240.00 (1) ( see People v Guzman , 6 Misc 3d 553, 556 [Crim Ct, NY County 2004]). Criminal Possession of Marihuana in the Fifth Degree was enacted as part of the Marihuana Reform Act of 1977 ( see Guzman, 6 Misc 3d at 556 ; see also Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 221, at 173). The purpose of the Marihuana Reform Act was to decriminalize the possession of a small quantity of marihuana for recreational use inside a person's home ( see Guzman, 6 Misc 3d at 556; Donnino, Practice Commentaries, at 173). Consequently, the private possession of a marihuana cigarette which is neither smoked nor open to view in a public place is punishable only as a violation under PL § 221.05 ( see Donnino, Practice Commentaries, at 175-176). Nevertheless, in decriminalizing the possession of a small quantity of marihuana for personal use, the Legislature did not intend to "condone or encourage the recreational use of marihuana" ( see Donnino, Practice Commentaries, at 175, citing L. 1977, c. 360, § 1). Hence, possession of a marijuana cigarette in "a public place" which is "burning or open to public view" is punishable as a class B misdemeanor ( see Donnino, Practice Commentaries, at 176). Application of the broad definition of public place to Criminal Possession of Marijuana in the Fifth Degree is consistent with the legislative intent of the statute ( see Guzman, 6 Misc 3dat 556).Unlike the narrower definition applicable to public lewdness, the "broad definition" of public place under PL § 240.00 (1) 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 seen to the casual passerby ( see McNamara, 78 NY2dat 633; Guzman, 6 Misc 3d at 556; see also People v Butler, 195 Misc 2d 228, 230 [Crim Ct, NY County 2003]. "That a member of the public may pass by is . . . the essence of a public place" ( see McNamara, 78 NY2dat 633). As a result, all that is required for the interior of car to constitute a public place as an element of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked ( see McNamara, 78 NY2dat 633). In an analogous context, possession of a loaded gun in the trunk of a car parked on a city street is nonetheless possession "in public" under Administrative Code section 10-131 (h) (2), despite the fact that the gun is in a closed, non-transparent container ( see People v Harris, 193 Misc 2d 487, 488 [App Term, 2nd Dept 2002]). Unlike a loaded gun possessed in public in violation of the Administrative Code, however, to sustain a charge of Criminal Possession of Marihuana in the Fifth Degree, possession of the marihuana must not only occur in a public place, but the marihuana must also be either burning or open to public view.
Here the factual allegations and the reasonable inferences to be drawn from them establish that the officer observed the defendant holding burning marijuana while seated in a vehicle at "166 West 122nd Street." The court takes judicial notice that West 122nd Street is a public street in Manhattan. The reasonable inference to be drawn from the fact that the incident, which the circumstances demonstrate happened in a vehicle, occurred "at" a particular address, is that the vehicle was on the street at that address. Hence, the complaint adequately pleads that the defendant possessed the marihuana in a public place, namely, in a vehicle on a city street. Furthermore, since, from his presumed vantage point outside the vehicle, the officer observed the defendant holding the lit marijuana cigarette which he subsequently recovered from defendant's hand, the complaint provides reasonable cause to believe that the marihuana possessed by the defendant was burning or open to public view. Although the complaint could have been more precisely worded, the law does not require such ( see People v Sylla, 7 Misc 3d 8, 10 [App Term 2d Dept 2005], appeal denied 4 NY3d 857). As drafted, the complaint is sufficiently detailed to enable the defendant to prepare a defense and prevent him from being tried twice for the same offense ( see People v Casey, 95 NY2d 354). While the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lower burden at the pleading stage has been met. The defendant's motion to dismiss for facial insufficiency is therefore denied.
The court may take judicial notice of matters of common knowledge within the court's jurisdiction (see Prince, Richardson on Evidence § 2-203 [Farrel 11th ed]).
REMAINING MOTIONS
Defendant's motions to suppress physical evidence and statements is granted to the extent of ordering a Huntley/Dunaway/Mapp hearing. Defendant's request for a bill of particulars and demand for discovery is granted to the extent provided by the People in their Voluntary Disclosure Form. Defendant's Sandoval application is reserved to the trial court.
This constitutes the decision and order of the Court.