On May 6, 2010 the People filed superceding informations charging the Defendant with Criminal Possession of Marijuana in the Fifth Degree and Criminal Sale of Marijuana in the Fourth Degree, in violation of Penal Law §§ 221.10 and 221.40. Counts one and two were dismissed on that date and replaced with these counts three and four. The Defendant now moves for an order dismissing counts three and four, alleging that the informations are facially insufficient.

These informations, like any other, will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, they contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3), based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offence charged. People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005)

The Defendant argues that, in the absence of a supporting deposition from the police agent who participated in the alleged transaction, the complainant's sworn statement of having viewed a video recording of the Defendant engage in the aforesaid transaction is facially insufficient at a matter of law. Specifically, the Defendant argues that the complainant's statement is hearsay.

The People oppose the motion, arguing that the complaint's statement that he personally set up, handled and immediately viewed the surveillance video recording of the alleged transaction, which he reports shows the Defendant both selling and possessing marijuana [*2]in a public place, properly supports the facial sufficiency of the informations.

Before relating that he viewed a video recording of a "hand to hand" sale of marijuana in a public place between the Defendant and a police agent, the complainant, Detective Dean Nicosia, states the following in the accusatory instruments:

On September 24, 2009, at approximately 3:37 PM your deponent equipped an agent of the Police with an audio/video recording device. I previously checked the device and knew it was in working condition. I then brought the Agent to the vicinity of 119 Linden Ave, Hempstead (sic) I placed a blank memory chip into the device and activated the recording. At approximately 1540 hrs the Agent returned to the car. I removed the audio/video recording device and observed that it was still in working condition. I then reviewed the recording.

The informations are also accompanied by a Forensic Evidence Bureau report indicating that the substance purchased from the Defendant tested positive for marijuana.

The court finds that Det. Nicosia's description of the personal "placement and testing of the surveillance camera and the chain of custody of the videotape provided reasonable assurances'(People v. Hawkins, 11 NY3d 484, 494, 872 NYS2d 395, 900 NE2d 946 [2008]) that the camera recorded reliably and that the videotape accurately depicted the events that it purported to depict;" providing a proper foundation for the admission of the video recording into evidence. People v. Campbell, 24 Misc 3d 82, 885 NYS2d 155 (App.Term 9th & 10th Jud. Dists. 2009); See also: People v. Patterson, 93 NY2d 80, 688 NYS2d 101 (1999); People v. Monserrate, 24 Misc 3d 1229(A), Slip Copy, 2009 WL 2357011 (S.C. Queens Co. 2009); People v. Orlando, 61 AD3d 1001, 878 NYS2d 185 (2nd Dept.2009) lv. den. 13 NY3d 837, 890 NYS2d 453 (2009)

The video recording being in admissible form, Det. Nicocia's description of what he viewed on the tape is not hearsay, but a review of something that, if at trial, could be admitted into evidence. It being impossible to annex the video recording itself to the accusatory instruments, the court does not find anything improper or insufficient in the complainant relating what he observed on a tape for which a proper evidentiary foundation has been established.

Viewing these allegations in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007) without giving them an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006), they sufficiently serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense, People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959), and "provide reasonable cause to believe that the defendant committed the offense[s.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) While such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial, People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980), the allegations need not reach that level at the pleading stage.

Based upon all of the foregoing, the court finds that the accusatory instruments are facially sufficient. [*3]

Accordingly, the Defendant's motion to dismiss is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

June 9, 210

___________________________

ANDREW M. ENGEL

J.D.C.