The defendant, Tony Bassali, is charged with two counts of Criminally Using Drug Paraphernalia in the Second Degree (PL 220.50 [1] and [2]). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence; preclusion of statements and identification evidence for which proper notice has not been given; and discovery. Additionally, the defendant has moved in separate papers to compel disclosure of the search warrant and underlying affidavit in the instant case. The defendant's motions are decided as follows.

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[3] and 100.40[1]; see People v. Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

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 [1999]; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not [*2]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 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; 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, deemed an information at arraignment, charges that on March 5, 2008 at approximately 3:20 p.m., the deponent officer observed the defendant sleeping in a bed in an apartment where several thousand plastic ziploc bags of different colors, several thousand glassine envelopes, and several bottles of a white powdery substance were found. Based upon his training and experience, the officer recognized the ziploc bags and glassine envelopes as items used to package and dispense narcotic drugs, and the white powdery substance as an item used to dilute and adulterate narcotic drugs.Defendant claims that the complaint fails to establish that he knowingly possessed the alleged drug paraphernalia in this case. He argues that facts alleged do not provide reasonable cause to believe that the defendant exercised dominion and control over either the items seized or the area in which they were found, and therefore do not support the theory that the defendant constructively possessed the alleged drug paraphernalia. Additionally, he contends that the facts do not provide reasonable cause to believe that the items, which he asserts may have innocuous uses, were possessed under circumstances evincing an intent to use them for the purpose of unlawfully packaging or mixing narcotic drugs. Accordingly, he seeks dismissal of the complaint for facial insufficiency.

Under PL 220.50 (1) "a person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses diluents, dilutants or adulterants . . . adapted for the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use, or . . . knowledge that some person intends to use [them] for purposes of unlawfully mixing, compounding, or otherwise preparing any narcotic drug or stimulant." Similarly, under PL 220.50 (2) "a person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses scales and balances used for the purpose of weighing and measuring controlled substances, under circumstances evincing an intent to use, or . . . knowledge that some person intends to use [them][for the purpose of unlawfully manufacturing, packaging and dispensing of a narcotic drug or stimulant." Under PL 10.00, to "possess" means to have physical possession of or dominion and control over tangible property. In this case, the defendant is alleged to have constructively possessed the ziploc bags, glassine envelopes, and bottles of a white powdery substance recovered. [*3]

Constructive possession requires more than a defendant's mere presence in a location where contraband is recovered. In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized (see People v Manini, 79 NY2d 561, 573 [1992]). Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant's control (see People v Tirado, 47 AD2d 193 [1st Dept 1975]).

Factors which tend to demonstrate a defendant's control over particular premises are the defendant's provision of the premises' address as a home address to city agencies (People v Vasquez, 142 AD2d 698 [2d Dept 1988]; the defendant's sole occupancy of premises where contraband is found in plain view (Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]); the defendant's named tenancy on a lease to premises where contraband is recovered (People v Torres, 68 NY2d 677 [1986]); and the defendant's possession of a key to premises where contraband is recovered (see People v Torres, 68 NY2d 677 [1986]; People v Sandobar, 191 AD2d 375 [1st Dept 1993]; Matter of Dirhim A., 178 AD2d 339 [1st Dept 1991]; People v Armstrong, 160 AD2d 206 [1st Dept 1990]; People v Robertson, 61 AD2d 600 [1st Dept 1978]; People v Vasquez, 141 AD2d 698 [2d Dept 1998]).

Here the defendant is alleged to have been found sleeping in a bed in an apartment where large quantities of alleged drug paraphernalia were found. The complaint does not state that anyone else was present in the apartment; the implication, therefore, is that the defendant was the sole occupant of the premises. Even so, it is not asserted that the alleged drug paraphernalia was discovered in plain view. Moreover, there are no facts to support the belief that the alleged contraband must have been found out in the open, rather than hidden inside something or some part of the apartment; although the items are identified as "several thousand" ziploc bags and glassine envelopes and "several" bottles of a white powdery substance, the size of this quantity of items is not described. In any event, the complaint completely fails to detail where within the apartment the alleged drug paraphernalia was found. It similarly neglects to specify the defendant's location, or the location of the bed in which he was observed sleeping, within the apartment. Even if it could reasonably be inferred that the bed was in a bedroom, there is no basis to conclude that the alleged contraband was found in the same room as the defendant. Indeed, there is no information whatsoever as to where the defendant was positioned relative to the items recovered. Further, there is no reference at all to the size of the apartment, or to the number of rooms it has. In short, regardless of whether the items were in plain view or hidden within the apartment, there are simply no facts from which to draw any inference as to the defendant's proximity to the alleged drug paraphernalia when it was seized.

Additionally, the fact that the defendant was observed sleeping in a bed in the apartment does not demonstrate that the defendant had control over the entire premises. Logic does not compel the inference that because he was sleeping in a bed there, the defendant was an owner or resident of the apartment; he just as easily could have been a guest. Presumably, since he was sleeping in a bed in the apartment at a time when no one else was home, the defendant, at a minimum, was present in the [*4]apartment with the consent of the owner or resident. Nevertheless, presence with permission in someone else's apartment, even solitary presence in a private place within the apartment, does not equal dominion and control over the whole apartment and all of its contents.

Constructive possession of the alleged drug paraphernalia in this case cannot be inferred from defendant's mere presence in the apartment (see People v Pearson, 75 NY2d 1001 [1990]). While the People need not, for pleading purposes, disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987]; People v Barona, 19 Misc 3d 1122A, 3 [Crim Ct, NY County 2008]), conduct which is equally compatible with guilt or innocence will not supply reasonable cause (People v Carrasquillo, 54 NY2d 248, 254 [1981]; Barona at 3). Without additional facts to show either that the defendant owned or lived in the apartment, or that items were found in plain view in close proximity to the defendant within the apartment, the complaint fails to provide reasonable cause to believe that the defendant exercised dominion and control over the alleged drug paraphernalia, and consequently fails to establish the essential element of knowing possession in this case. Accordingly, the defendant's motion to dismiss for facial insufficiency is granted. The defendant's remaining points are moot.

This constitutes the decision and order of the Court .

Dated:June 9, 2008

New York, New York

_________________________

Elisa S. Koenderman, JCC