The defendant, together with one co-defendant, Yahia Ahmed, is charged with a violation of Penal Law § 220.50(2) (Criminally Using Drug Paraphernalia in the Second Degree). Although the defendants are both charged in the same complaint, each defendant is charged acting alone with a single count of the offense.

The defendant has moved in an omnibus motion for the following: (1) Dismissal

for Facial Insufficiency; (2) a Bill of Particulars and Discovery; (3) Copy of the warrant,

affidavit and return; (4) Mapp/Dunaway hearing; (5) Preclusion of any admissions,

confessions or statements alleged to have been made by defendant at any time; (6)

Preclusion of any identification of defendant; (7) a Sandoval Hearing; and (8) Disclosure

under Brady and Rosario.

Defendant's facial insufficiency motion is decided as follows:FACIAL SUFFICIENCY

The defendant is charged with Criminally Using Drug Paraphernalia in Second

Degree (PL § 220.50(2)) under a theory of knowing possession.

The accusatory instrument, in pertinent part, charges defendant with the

commission of the aforementioned crime on April 10, 2007, at about 15:40 hours, at

3478 Broadway in the County of New York, State of New York under the following [*2]

circumstances:

Deponent states that deponent recovered approximately five hundreds [sic] yellow glassine envelopes and approximately 100 small zip lock bags from a trap door inside of the bathroom inside of the above location.

The deponent further states the defendants had control over the said location and the said items in that defendant Ahmed was standing behind the counter in the deli area of the store and defendant Alsaidi was standing behind the cash register in the store.

An information is facially sufficient if it contains 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[3] and §100.40[1]); See People v. Dumas, 68 NY2d 729 (1986); See also People v. Alejandro, 70 NY2d 133 (1987). 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, 390 [2000]; People v. Konieczny, 2 NY3d 569 [2004]). The Court concludes that the factual allegations in the complaint fail to establish the element of knowing possession required to plead the charge of Criminally Using Drug Paraphernalia in the Second Degree. Specifically, the complaint fails to allege facts of an evidentiary nature to support that the defendant exercised dominion and control over the drug paraphernalia necessary to infer constructive possession (See, People v. Headley, 74 NY2d 858, 859 [1989]). In order to charge a defendant with constructive possession of tangible property, the People must demonstrate that the defendant exercised "dominion or control" over the property by having either a sufficient level of control over the area in which the contraband is found or authority over the person from whom the contraband is seized. See People v. Manini, 79 NY2d 561 (1992). Mere presence of an individual in a location where contraband is discovered is insufficient proof of that individual's possession of contraband. See People v. Pearson, 75 NY2d 1001 (1990). A possessory interest has been shown under circumstances where the defendant resides in the premises where the contraband is found. See People v. Phiefer, 43 NY2d 719 (1977) (evidence that revolver was found in plain view on the bed in premises where the defendant admitted residing was sufficient to establish that defendant had dominion and control over the weapon); and also see People v. Watson, 56 NY2d 632 (1982) (defendant who admitted living in apartment and who hung clothes in the bedroom where a hand grenade simulator was found exercised sufficient dominion and control to be deemed in possession of simulator). But where the defendant was charged with constructive possession of cocaine found in plain view in the back room of a grocery store, evidence that the defendant was arrested as he was walking briskly from the back room towards the front exit was insufficient to establish his dominion or control over the contraband absent proof that the defendant "owned, rented or had control over or a possessory interest in the store or the back room." See People v. Pearson, supra . Here, the evidentiary facts are that the alleged drug paraphernalia (approximately five hundred yellow glassine envelopes and 100 small zip lock bags) was recovered from inside a trap door in the bathroom of the location (a store) where defendant was standing behind the cash register. The complaint does not allege that the defendant was either the owner or manager of the store, or that he had any possessory interest or control over the area in which the alleged drug [*3]paraphernalia was found. Indeed, even if it could reasonably be inferred from the allegation that the defendant was standing behind the cash register that he worked as a cashier in the store, that is insufficient to establish that he had a possessory interest or control over all aspects or areas of the store. See People v. Johnson, 209 AD2d 721 (2nd Dept. 1994) (the defendant, who worked in the store where she admitted to occasionally using the bathroom in the basement, and who had the right to exclude others from the basement, exercised a sufficient level of control over the basement in order to constructively possess drugs recovered from the basement ceiling). Moreover, defendant did not have apparent authority over the location. Defendant was not the sole employee in the store at the time he was arrested: he was arrested with a co-defendant who was standing behind the deli counter. See Matter of Dirhim A., 178 AD2d 339 (1st Dept. 1991) (allegation that respondent was the sole occupant of a smoke shop to which he had the key and where drug paraphernalia was found in plain view was sufficient to support a charge of knowing possession of drug paraphernalia). In this case, the alleged drug paraphernalia was not recovered from the store itself, where the defendant was found, but from a bathroom inside the store. Even if it can be presumed that, as a cashier in the store, defendant had access to the bathroom inside the store, mere access to a location within the store, without more, is insufficient to establish that the defendant had dominion or control over that area. Moreover, the alleged drug paraphernalia was not in plain view in the bathroom, but was secreted inside a trap door there. In sum, the factual allegations in the complaint are insufficient to support a charge that the defendant knowingly possessed the alleged drug paraphernalia. Additionally, there are no factual allegations to support that the defendant either intended or knew that someone else intended to use the glassine envelopes and ziplock bags seized for the purpose of unlawfully packaging drugs. See People v. Rodriguez, 606 NYS2d 536 {159 Misc 2d 670} (1992).

Accordingly, since the complaint fails to allege sufficient facts in support of the charge of Criminally Using Drug Paraphernalia in the Second Degree, defendant's motion to dismiss for facial insufficiency is granted. As a result of this dismissal, the remaining points of defendant's Omnibus Motion are moot.