The defendant, Freddy Osorio, is charged with promoting prison contraband in the second degree (P.L. 205.20[1]), criminal sale of marijuana in the fourth degree (P.L. 221.40), and criminal possession of marijuana in the fifth degree (P.L.221.10[1]) . He now moves the Court for an order dismissing the charge of promoting prison contraband in the second degree (Count 1) for facial insufficiency.

An accusatory instrument upon which the defendant may be held for trial "must allege 'facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b])." People v. Dumas, 68 NY2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish . . . every element of the offense charged and the defendant's commission thereof." CPL §100.40(1)(c). A failure to allege every element of the offense charged is a jurisdictional defect. People v. Kalin, 12 NY3d 225, 229 (2009); People v. Casey, 95 NY2d 354, 364 (2000). [*2]

In determining the facial insufficiency of an accusatory statement, the court must view the facts in the light most favorable to the People. People v. Contes, 60 NY2d 620, 621 (1983). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry. . . ." People v. Deegan, 69 NY2d 976, 979 (1987). "So long as the factual allegations of an information give an accused notice sufficient 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 (citations omitted)." People v. Casey, 95 NY2d at 360.

The within accusatory instrument states that on February 15, 2011, at about 12:01 p.m. at 120 Baruch Drive in the County and State of New York:

Deponent . . . observed (i) the defendant place a small object inside a book and hand said book to a separately charged individual, Morgan Weil (ii) Morgan Weil open the book, close the book, and hand it back to defendant. Deponent isinformed by Officer Wayman Manning that informant recovered two bags ofmarijuana from defendant's front sweatshirt pocket. Deponent further statesdeponent recovered one bag of marijuana from Morgan Weil's right hand.Deponent further states that the above described events occurred on the sidewalkoutside the above mentioned location

Deponent states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: his/her professional training as a police officer in the identification of drugs, his/her prior experience as a police officer in drug arrests, the odor emanating from the substance and observation of the packaging which is characteristic of this type of drug.

Deponent is informed by Corrections Officer Kenneth Perez that as informant was processing the defendant at Central Booking at 100 Centre Street, a correctionalfacility, informant recovered 16 bags of marijuana from defendant's crotch, underneath three layers of clothing.

Deponent states that he is informed by informant, Corrections Officer Kenneth Perez that the above-described substance that informant Perez recovered is in fact what is it alleged to be based upon information and belief, the source ofwhich is as follows: his/her professional training as a police officer in theidentification of drugs, his/her prior experience as a police officer in drug arrests,the odor emanating from the substance and observation of the packaging which ischaracteristic of this type of drug.

Officers Wayman Manning and Kenneth Perez have both submitted supporting depositions.

A person is guilty of promoting prison contraband in the second degree pursuant to P.L. §205.20(1) when: "[h]e knowingly and unlawfully introduces any contraband into a detention facility." The contraband to be considered is the 16 bags of marijuana.

A "detention facility" is "any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or . . . (d) otherwise confined pursuant to an order of a court." Penal Law §205.00(1). [*3]

At least one Court has determined that Central Booking is not a detention facility in the case of pre-arraignment confinement. People v. Tosca, 28 Misc 3d 465, 468 (Crim. Ct. Bx. County, 2010). In Tosca, the defendant, while in police custody, was searched in Central Booking and found to possess two syringes; he was then charged with promoting prison contraband in the second degree. Basing its decision on legislative intent, the Bronx County Criminal Court dismissed the charge, determining a detention facility to be "any place used for the confinement of a person pursuant to an order of a court." Id. at 468, citing Sponsor's Mem, Bill Jacket, L 1972, ch 207. The defendant in Tosca was not yet arraigned, and there was no court order that the defendant be sent to a detention facility. Because there was no court order, the Court ruled that Central Booking was not a detention facility within the meaning of the statute. Id., see also People v. Carrington, 81 AD3d 844 (2nd Dept. 2011). Accordingly, the charge of promoting prison contraband was dismissed.

The facts in this case are closely analogous to the facts in Tosca. Mr. Osorio was in police custody at Manhattan Central Booking and being prepared for arraignment when Officer Perez discovered the 16 bags of marijuana. Although the Tosca decision is not binding in this jurisdiction, it is highly persuasive for the reason laid out in that case: "If this court were to determine that...Central Booking is a detention facility, such a determination would be contra the legislative intent when the law was amended;" the intent being "to prohibit a person from introducing contraband into a detention facility, and to prohibit an inmate of such facility from possessing contraband." Tosca, 28 Misc 3d at 468; Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2010 Electronic Update, Penal Law §205.20. The purpose of Penal Law §205.20 is not to punish those found with contraband once inside a detention facility's doors, but to prevent the introduction of contraband into such facilities in the first place. Therefore, this Court determines Manhattan Central Booking not to be a detention facility under the meaning of Penal Law §205.20.

Because Manhattan Central Booking is not a detention facility as defined by Penal Law §205.00(1), the accusatory instrument fails to allege an essential element of Penal Law §205.20, and the motion to dismiss the charge of promoting prison contraband for facial insufficiency is granted and Count 1 will be dismissed.

PRECLUSION

The defendant's motion for preclusion of statements for which notice was not provided is denied, with leave to renew, should the People seek to introduce such evidence.

SANDOVAL/MOLINEUX

The defendant's motion pursuant to People v. Sandoval, 34 NY2d 371 (1974) and People v. Molineux, 168 NY 264 (1901) is referred to the trial court for determination.

The defendant's motion for an order compelling a bill of particulars and discovery and inspection is denied. The People filed a Voluntary Disclosure Form on May 9, 2011.

This case is scheduled for a Mapp hearing and trial on July 12, 2011.

This opinion shall constitute the decision and order of the Court.

Dated:June 21, 2011______________________________

New York, New YorkMatthew A. Sciarrino, Jr.

Judge of the Criminal Court