PEOPLE v. GUZMAN (2004)

Defendant is charged with Criminal Possession of Marihuana in the Fifth Degree (in violation of Penal Law § 221.10(1)) and Unlawful Possession of Marihuana (in violation of Penal Law § 221.05).   By omnibus motion he moves, inter alia, for an order dismissing the charge of Penal Law § 221.10(1)for facial insufficiency.

 An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges.  Criminal Procedure Law § 100.15(3);  People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).   Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof.  CPL § 100.40(1)(b),(2).   An information which fails to satisfy these requirements is fatally defective.  People v. Alejandro, 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).

The information alleges, in pertinent part, that at Dyckman Street and Seaman Avenue Police Officer Brian Egan observed Jesus Santos exit a motor vehicle driven by defendant and approach an unidentified individual.   Officer Egan then observed Mr. Santos receive three bags of marijuana from the unidentified individual in exchange for a sum of money, return to the vehicle, and enter it.   Mr. Santos handed one bag of marijuana to defendant, who threw it to the floor of the vehicle.   Officer Egan recovered the bag of marijuana from the floor of the vehicle immediately next to where defendant was sitting.

Penal Law Section 221.10(1) states, “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․” Penal Law Section 240.00(1) defines “public place” 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.”

Defendant argues that the charge of Criminal Possession of Marihuana in the Fifth Degree is facially insufficient because it fails to establish that the officer, standing outside the car, could positively identify from his vantage point that what was handed to defendant was marijuana.   He also asserts that because the car's windows were tinted, the marijuana was not in public view.   Finally he contends that the motor vehicle in which he allegedly possessed the marijuana is not a public place.

Inability to Observe

 On a motion to dismiss an accusatory instrument the court must confine its analysis to the allegations contained in the complaint and in any depositions filed in support of it.  People v. Pelt, 157 Misc.2d 90, 92, 596 N.Y.S.2d 301 (Crim. Ct. Kings Co.1993);  People v. Fink, N.Y.L.J., May 22, 1992 at 23, col. 4 (Crim. Ct. N.Y. Co.).   Defendant's allegations regarding the police officer's ability to identify the bag as containing marijuana and the tinted windows are dehors the complaint.   Thus, the Court may not consider defendant's allegations in ruling on the sufficiency of the information.   Accordingly, this branch of the motion to dismiss is denied.

Public Place

 No appellate authority has determined the precise issue presented here:  i.e., whether a parked car may be deemed a “public place” within the meaning of Penal Law Sections 240.00 and 221.10(1).   However, People v. Butler, 195 Misc.2d 228, 757 N.Y.S.2d 674 (Crim. Ct. N.Y. Co.2003), while factually distinct from the instant case, addresses this issue.

In Butler the information alleged that a detective observed the defendant reach into the open window and retrieve marijuana from the front passenger seat of a vehicle parked on a public street in Manhattan.   The detective could see marijuana on the front passenger seat of the car.   While the defendant in Butler was actually observed on the street in possession of marijuana-a fact not alleged in the instant complaint-the Butler court's analysis is persuasive.

The Butler court cited People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788 (1991), in which the complaint alleged a violation of the public lewdness statute (Penal Law § 245.00(a)).   Although the Court of Appeals rejected the prosecution's request that it adopt the “broad” definition found in Penal Law § 240.00, it held that for purposes of determining facial sufficiency, the interior of a parked car may be considered a “public place” under circumstances indicating that “the car's interior is visible to a member of the passing public, and the vehicle is situated in a place where it would likely be observed by such a person.”  People v. McNamara, 78 N.Y.2d at 633, 634, 578 N.Y.S.2d 476, 585 N.E.2d 788.

The Butler court also cited People v. Harris, 193 Misc.2d 487, 750 N.Y.S.2d 424 (App. Term 2d Dep't), appeal denied, 99 N.Y.2d 559, 754 N.Y.S.2d 211, 784 N.E.2d 84 (2002).   That case held that the trunk of a car parked on a city street is in “public” under Section 10-131(h)(1) of the Administrative Code of the City of New York, prohibiting possession of a loaded rifle or shotgun in public.

People v. Morgan, 10 A.D.3d 369, 781 N.Y.S.2d 652 (2d Dep't 2004), decided after Butler, provides additional support for the Butler analysis.   The Morgan Court held that a police officer who detected the strong odor of marijuana emanating from the defendant's car, observed the remains of marijuana cigarettes in the ashtray, and heard an admission by the passenger that the occupants had been smoking, had probable cause to arrest the defendant for, inter alia, the misdemeanor of Criminal Possession of Marihuana in the Fifth Degree.   In so holding, the Court cited as authority the same cases relied upon by Butler:  People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, and People v. Harris, 193 A.D.2d 757, 598 N.Y.S.2d 986.

The legislative history surrounding the enactment of Penal Law § 221.10(1) suggests that it was intended to apply to a vehicle parked on a public street.   The section was promulgated as part of the Marihuana Reform Act of 1977.   It was the Legislature's intention in passing the Act to ensure that “[t]he average citizen who merely uses a small quantity of marijuana for personal use at home or to share with friends would no longer fear arrest, jail, or a criminal record.”   Mem. of Assembly Comm. on Codes, Bill Jacket, L. 1977, ch. 360 (emphasis added).   See also Mem. of Community Service Society of New York, Feb. 11, 1977, Bill Jacket, L. 1977, ch.   360 (“We strongly support the intent of the instant bill to remove the possibility of arrest, jail and a criminal record from the otherwise law-abiding citizen who wishes to use or to share with friends a small quantity of marijuana for recreational purposes in his home”)(emphasis added);  Mem. No. 21 of Community Service Society of New York, Mar. 25, 1977, Bill Jacket, L. 1977, ch. 360.

The Legislature incorporated the “very broad” definition of “public place” found in section 240.00 as an element of the crime of Criminal Possession of Marihuana in the Fifth Degree.   Practice Commentary, PL § 240.00 at 332.  (McKinney's 2000).   Among the places which Section 240.00 deems “public” are highways. 240.00(1).

The complaint here alleges that defendant possessed marijuana in a vehicle at the intersection of two public streets in New York County.   In light of prevailing case law, the legislative history of Article 221, and the broad definition of “public place” found in Section 240.00(1), the complaint sufficiently alleges that defendant possessed marijuana in a public place.

Defendant's motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is denied.

OTHER MOTIONS

Defendant's motion to suppress physical evidence is granted to the extent that a hearing shall be held to determine whether there was probable cause to arrest the defendant.

Defendant's Sandoval motion is reserved for the trial court.

This is the decision and order of the Court.

ELLEN M. COIN, J.