Defendant is charged with one count of Criminal Sale of Marijuana in the Fourth Degree (Penal Law §221.40) and one count of Criminal Possession of Marijuana in the Fifth Degree (P.L. §221.10(2)). He moves for an order dismissing the charges for facial insufficiency. For the reasons that follow, defendant's motion is granted.^[FN1]

In pertinent part, the complaint alleges that the police officer deponent was informed by an undercover detective that at about 6:55 p.m. on April 8, 2003, he saw separately-charged defendants James Warte, Joseph White and Angel Rivera standing near the entrance to 2028 Second Avenue. He observed separately-charged defendant Carl Pogue standing behind a counter in that location. The undercover approached defendant White, who asked the undercover, "[w]hat do you need?" He replied, "[t]wo." At that time, defendant Warte exited [*2]the location, and began looking up and down the block. The undercover spoke to defendants White and Rivera, whereupon White said to the undercover, "[g]imme the money." The undercover handed twenty dollars to White, who then walked to the back room of the location and returned with two clear ziploc bags of marijuana. He handed them to the undercover, who then left the location.

The complaint further alleges that the defendant and Jaime Rodriguez were present in the back room of the location, which defendant White had entered to retrieve the bags of marijuana. Deponent allegedly recovered 57 bags containing marijuana from a trap in the wall/floor area of this room.

While according to the People's Voluntary Disclosure Form, defendant was arrested at "approximately [the] same time as the occurrence," defendant was in fact arrested at 7:30. The VDF reflects that the undercover officer performed a "confirmatory I.D." at 7:35 p.m. in front of the location.

DISCUSSION

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 NY2d 729 (1986). Furthermore, the information must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof. CPL §100.40(1)(b),(c). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 NY2d 133, 139 (1987).

The prima facie case requirement is a lower threshold than the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 NY2d 677, 680 (1999); People v. Hyde, 302 AD2d 101, (1st Dep't 2003). Viewing the evidence in the light most favorable to the People, the court must assess whether the factual allegations are sufficiently evidentiary in character and tend to support the charges. Furthermore, the allegations must establish reasonable cause to believe and a prima facie case that a defendant is guilty of the crimes charged. People v. Allen, 92 NY2d 378, 385 (1998). If the evidence supporting the charges is circumstantial, it will be sufficient if the allegations, and the logical inferences which flow from them, supply proof of every element of the crimes charged, and defendant's commission thereof. See, People v. Cooks, 230 AD2d 683, 684 (1st Dep't), lv denied 89 NY2d 863 (1996) (sufficiency of evidence before the Grand Jury).

A. Criminal Possession of Marijuana

Defendant contends that the accusatory instrument is facially insufficient because it fails to allege that he was in actual or constructive possession of the marijuana.

The People respond that this element is sufficiently pled by the allegations that 57 bags of marijuana were recovered in the back room of the location where defendant was present. They argue that this shows that defendant was in constructive possession of what they characterize as "the stash" of marijuana that defendant was acting in concert to sell.

A person is guilty of Criminal Possession of Marijuana in the Fifth Degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marijuana and the preparations, compounds, mixtures or substances are of an aggregate weight or more than twenty-five grams. P.L. §221.10(2). [*3]

The term "possess" means to have physical possession or otherwise to exercise dominion or control over tangible property. P.L. §10.00(8). The term includes actual or constructive possession. People v. Torres, 68 NY2d 677 (1986); People v. Sierra, 45 NY2d 56, 60 (1978); People v. Fernandez, 270 AD2d 91

(1st Dep't), lv denied 95 NY2d 834 (2000).

To demonstrate constructive possession, "...the People must show that the defendant exercised 'dominion and 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). Accordingly, in this case, the People must make a prima facie showing that defendant exercised dominion and control over the area where the marijuana was discovered, or that he was acting in concert with individuals who possessed the marijuana.

"Under section 20.00 of the Penal Law, a defendant is accessorially liable for a criminal offense committed by another when he 'solicits, requests, commands, importunes, or intentionally aids' another to engage in the offense and when the defendant does so with the mental culpability required for the commission of the offense." People v. Manini, 79 NY2d at 566-567.

"To establish an acting-in-concert theory in the context of a drug sale, the People must prove not only that the defendant shared the requisite mens rea for the underlying crime but also that defendant, in furtherance of the crime, solicited, requested, commanded, importuned or intentionally aided the principal in the commission of the crime. Although case law discussing these criteria is somewhat fact-specific, integral to each inquiry is whether a defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance. The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise..." People v. Bello, 92 NY2d 523, 526 (1998)(internal citations omitted).

The complaint alleges only defendant's presence in a room where secreted marijuana was discovered. The mere presence of an individual in a location where contraband is discovered is insufficient proof of that individual's possession of the contraband. People v. Pearson, 75 NY2d 1001 (1990)(defendant's presence in back room of grocery store did not itself prove dominion and control over the contraband discovered there where there was no evidence that defendant owned, rented or had control over or possessory interest in premises, nor was there proof that he was involved in drug selling or other operation conducted there); People v. Brown, 240 AD2d 675-676 (2nd Dep't 1997)(mere presence of defendant in boyfriend lessee's apartment where contraband discovered did not establish that she exercised dominion and control over areas where contraband seized).

No factor other than defendant's presence in the back room is alleged that could circumstantially establish his dominion and control over the marijuana, either individually or acting-in-concert with others. For example, there is no alleged interaction between defendant and the separately-charged defendants involved in the purported sale, nor between defendant and the undercover officer, either prior to, during or after the sale. Indeed, there is no allegation that the undercover officer even saw defendant at the scene at the time of this sale at 6:55 p.m. Thus, contrary to the People's suggestion, they have not made a prima facie showing that defendant must have acted as the "stash man" because White retrieved the marihuana that he sold to the [*4]undercover from the back room.

Furthermore, the time lapse between the alleged sale of marijuana and defendant's arrest makes tenuous an inference of acting-in-concert stemming from his presence in the room and the sale to the undercover. Finally, the marijuana was allegedly retrieved from the wall/floor area, it was not in open view. This factor also makes it difficult for the Court to infer defendant's dominion and control over the marijuana by virtue of his mere presence.

Accordingly, this charge is dismissed as facially insufficient.

B. Criminal Sale of Marijuana in the Fourth Degree

Defendant contends that the complaint merely places him in a room and is devoid of factual allegations establishing that he was involved in exchanging or disposing of marijuana to another.

In response, the People assert that defendant was in a room that they characterize as a "non-public area", acting in concert as the "stash man" by secreting and allegedly passing marijuana to defendant White.

In pertinent part, Penal Law §221.40 provides that a person is guilty of Criminal Sale of a Marijuana in the Fourth Degree when he knowingly and unlawfully sells marijuana."'Sell' means to sell, exchange, give or dispose of to another, or to offer or agree to do the same." P.L. §220.00(1).

As the Bello court made clear, "integral to each inquiry is whether a defendant exhibited any calculated or direct behavior that purposefully affected or furthered the sale of the controlled substance. The key to our analysis is whether a defendant intentionally and directly assisted in achieving the ultimate goal of the enterprise..." People v. Bello, 92 NY2d 523, 526.

Here, the People suggest that this was demonstrated by defendant's role as the stash person. Yet as this Court has concluded in the discussion above, there is insufficient evidence that defendant exercised any dominion or control over the purported stash. And there is nothing beyond his presence in the back room after the exchange, to link him to the actions of the co-defendants who participated in the sale to the undercover officer. People v. Cabey, 85 NY2d 417 (1995); cf. People v. Bello, supra.

Based on the foregoing, defendant's motion to dismiss this charge as facially insufficient is granted.

This constitutes the Decision and Order of the Court.
Dated: New York, New York ______________

December 17, 2003 Ruth E. Smith

JCC

Decision Date: December 17, 2003