Defendant is charged with Prostitution (PL § 230.00), Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50(2)).

In a pretrial omnibus motion, Defendant seeks an Order:

1)Dismissing the charges against Defendant for facial insufficiency, pursuant to CPL §§ 100.40, 170.30(1)(a), and 170.35(1)(a);

2)Suppressing any and all tangible evidence seized, or, in the alternative, granting a Mapp/Dunaway hearing;

3)Suppressing noticed statements allegedly made by Defendant, or, in the alternative, granting a Huntley hearing;

4)Suppressing noticed identification testimony, or, in the alternative, granting a Wade hearing;

5)Precluding statements allegedly made by Defendant or any identification testimony which have not been noticed to Defendant, pursuant to CPL § 710.30;

6)Granting a Bill of Particulars and Discovery and inspection, pursuant to CPL §§ 200.95, 100.45 and 240.40;

7)Precluding the People from using at trial any evidence of Defendant's prior convictions or bad acts, pursuant to People v. Sandoval, 34 NY2d 371, 314 NE2d 413, 357 NYS2d 849 (1974), and its progeny;

8)Reserving rights for further motions; and

9)Granting such additional relief as the Court deems just and proper.

The People filed a Response and Voluntary Disclosure Form ("VDF") dated February 5, 2010. The People filed a cross-motion for reciprocal discovery.

The Complaint, signed by Detective Nicholas Lagano, states, in relevant part:

Deponent states that the deponent is informed by undercover officer shield 136 that the defendant agreed to engage in fellatio with the undercover officer in exchange for $175 dollars.

Deponent states that deponent is informed by U/C shield number 161, that the informant observed the defendant arrive to the above describe location inside of a 2008 Chevy Sedan with the defendant in the passenger seat. Deponent further states that the deponent is informed by Detective Juan Rodriguez, shield 04435, of the Vice Enforcement Division, that the informant recovered two (2) glassines of heroin and approximately one hundred (100) empty small glassines from inside of the rear compartment of above described vehicle.

In addition to this Complaint, the People have served and filed supporting depositions signed by Juan Rodriguez, Undercover Officer Shield 00136, and Undercover Officer Shield 00161.

The People argue that the factual allegations in the complaint track the exact language of PL § 230.00 and establish that Defendant offered to perform a sexual act in consideration for a sum of money, and are therefore facially sufficient to support the charge of prostitution.

The word "agree" is neither ambiguous nor vague.^[FN1] Its definition, particularly as used in a legal complaint, such as in this case, has a long-settled meaning, which clearly encompasses the specific acts alleged in this case. Notably, Defendant does not provide the Court with any [*2]proposed language or specific allegations which she contends should have been included in the Complaint.

The Court takes note that in recent times, it has been claimed that certain words included in criminal complaints are conclusory , thereby rendering the complaint deficient. While the term "agree" may be subject to much analysis in the civil context (see e.g. Williston on Contracts 4th § 1:3, Corbin on Contracts § 1:9), we hold that the word "agree," and its conjugations, when read in the context of a Criminal Court Complaint, is neither conclusory, vague, nor ambiguous, and given it ordinary meaning in context, will allow conversion of a Criminal Court Complaint into a legally sufficient Information to support prosecution of the Defendant.

We find the cases cited by Defendant to be unpersuasive. In People v. A.M., supra , the court was concerned that "due to the ambiguities attendant to such encounters," an offer for consensual sex might be interpreted by a police officer as an act of prostitution. Id at 4. Here, where the complaint indicates that "defendant agreed to engage in fellatio with the undercover officer in exchange for $175 dollars," we find little ambiguity in the description and the nature of the encounter.^[FN2] Defendant also relies on People v. A.S., supra , insofar as it states that an "allegation that defendant agreed' to an act of prostitution is merely conclusory " In People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998), the Court of Appeals rejected the defendant's argument that the term "solicit" is conclusory and therefore insufficient to support a charge of criminal solicitation in the fifth degree. More recently, the Appellate Term of the 2nd and 11th Judicial Districts, following People v. Allen, supra , concluded "that such terms as offer and agree' as alleged in the accusatory portion are so inherently "evidentiary in character" that their mere recapitulation in the factual portion creates a facially sufficient pleading, the particulars of which are evidentiary matters appropriate for trial." People v. Hilo, 4 Misc 3d 132(A), 791 NYS2d 872 (2004). Accord People v. Polianskaia, 189 Misc 2d 237, 730 NYS2d 685, (Crim. Ct. NY Co. 2001). We agree. Therefore, we decline to dismiss the charge of prostitution for facial insufficiency.

Defendant also moves to dismiss the drug charges for facial insufficiency. Defendant argues that while PL § 220.25(1) states that "[t]he presence of a controlled substance in an automobile is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found," there is no allegation that Defendant was actually in the vehicle when the contraband was found. Defendant points to the language of the complaint, which states that while she did arrive inside of a 2008 Chevy Sedan (the same sedan from which the drugs and drug paraphernalia were recovered), she was arrested inside of 659 9th Avenue. Furthermore, Defendant points out that there is no allegation that the vehicle was under constant observation from the time Defendant exited the vehicle to the time [*3]the vehicle was searched. Hence, Defendant argues, the contraband could have found its way into the vehicle at some point after she exited. Defendant points to People v. Spillman, 309 NY 295, 130 NE2d 625 (1955), which involved a similar statutory automobile presumption in the context of firearm possession. In Spillman, supra , the defendant's absence from his wife's automobile when the weapon was found rendered the presumption inapplicable. Defendant also cites People v. Crenshaw, 202 Misc. 179, 117 NYS2d 202 (Bronx Co.Ct. 1951), also involving firearm possession, in which the vehicle's occupants were not chargeable under the automobile presumption because the vehicle was left unattended and unlocked for forty minutes before it was searched. Furthermore, Defendant argues that an allegation of her mere presence in the vehicle at some time before the drugs and drug paraphernalia were found fails to establish

Defendant's dominion and control over the contraband, and thus fails to establish constructive possession of the drugs and drug paraphernalia. Defendant therefore argues that the charges of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminally Using Drug Paraphernalia in the Second Degree must be dismissed as facially insufficient.

The People argue that, under the car presumption theory, Defendant constructively possessed the drugs and paraphernalia recovered from the vehicle and hence the charges are supported by sufficient factual allegations.

Defendant is charged with PL § 220.03, which states that "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance." Defendant is also charged with PL § 220.50(2), which requires that she "knowingly [possess]" drug paraphernalia.

Possession, a common element of the statutes under which Defendant is charged, is defined in the criminal law as "[t]o have physical possession or otherwise to exercise dominion or control over tangible property." PL § 10.00(8).

The presumption allowed by PL § 220.25(1), which applies to "each and every person in the automobile at the time such controlled substance was found," is a rebuttable inference which may support the People's prima facie case, but may also be rejected by the trier of fact. People v. Levya, 38 NY2d 160, 379 NYS2d 30, 341 NE2d 546 (1975). Here, however, the People's reliance upon PL § 220.25(1) is unavailing, since there are no factual allegations that Defendant was in the automobile at the time the contraband was discovered.

Where a Defendant was not in actual possession of the contraband, the People are required to show that the Defendant was in constructive possession of the illegal substance, meaning that the defendant "exercised some dominion and control' over the goods or the premises where the goods were found." People v. Fetter, 201 AD2d 500, 607 NYS2d 381 (2nd Dept. 1994); People v. Manini, 79 NY2d 561, 569, 594 NE2d 563, 573, 584 NYS2d 282, 288 (1992); People v. Torres, 68 NY2d 677, 496 NE2d 684, 505 NYS2d 595 (1986). The mere allegation that Defendant exited an area, and that contraband was found somewhere therein, is insufficient to establish Defendant's dominion and control over the illegal substances. See People v. Pearson, 75 NY2d 1001, 556 NE2d 1076, 557 NYS2d 269 (1990) (evidence that defendant was seen exiting back room of grocery store was insufficient to establish a constructive possession of the drugs lying in plain view in that room). See also People v. Scott, 206 AD2d 392, 614 NYS2d 739 (2nd Dept. 1994) (the People failed to prove that defendant was in constructive possession of cocaine found in basement where there was no evidence that he resided, frequented, or had control over basement in which cocaine was found, but was merely present there). [*4]

Here, where Defendant exited the vehicle and was arrested elsewhere, the automobile presumption, PL § 220.25(1), does not apply. Moreover, there are no allegations of Defendant's dominion and control over the drugs or drug paraphernalia. We therefore find that the Complaint fails to adequately allege constructive possession. However, the defects in the Complaint may be curable pursuant to CPL § 170.35(1), and we grant the People leave to supersede.