Defendant is charged with possession of a gambling device (PL 225.30 [2]), a class A misdemeanor. He moves the court for omnibus relief, including relief that may be just and proper under the circumstances of this case and preserving constitutional rights not waived in writing. The People submitted papers in opposition to defendant's motion. The court has inspected the criminal court information, and finds that it fails to allege "facts of an evidentiary character" (CPL 100.15 [3]) demonstrating "reasonable cause" to believe defendant committed the crime charged (CPL 100.40 [4] [b]; People v Kalin 12 NY3d 225 [2009]; People v Casey, 95 [*2]NY2d 354 [2000]; People v Dumas, 68 NY2d 729 [1986]).^[FN1] Therefore, the criminal court information is dismissed, and all motions are denied as academic.

"[A] fundamental . . . basic principal of justice and fair dealing" requires that an accusatory instrument factually describe the elements of the crime and the particular acts of defendant which constitute its commission (Casey, 95 NY2d at 363, quoting People v Zambounis, 251 NY 94 [1929]). To be facially sufficient, an accusatory instrument must set forth facts in the complaint or supporting depositions, containing non-hearsay allegations, which if true, establish "every element of the offense charged and defendant's commission thereof" (CPL 100.40 [1] [c]). The failure of an accusatory instrument to state "facts of an evidentiary character supporting or tending to support the charges" (CPL100.15 [3]) begets a non-waivable jurisdictional impediment to a defendant's conviction (CPL 170.35 [1] [a]). Such an error in the pleadings violates a defendant's right to notice, sufficient to enable preparation of a defense and to prevent double jeopardy, and can be challenged on appeal even when the issue is not preserved in lower court (Kalin, 12 NY3d at 229; Casey, 95 NY2d at 364; US Const 6th, 14th Amends).

Thus, the court is obligated to inspect a criminal court information for facial sufficiency during the preliminary proceedings, and to dismiss a jurisdictionally defective criminal court information (CPL 140.45). A defendant, being prosecuted on the basis of a criminal court information alone, must have, at least, assurances that the information contains allegations establishing a legally sufficient case (People v Alejandro, 70 NY2d 133 [1987]).

In the case at bar, defendant is accused of one count of possession of a gambling device (PL 225. 30 [2]). A person is guilty of possession of a gambling device if with knowledge of the character thereof, he "manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to effect ownership, custody or use of . . . Any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity." "Possesses" means "to have physical possession or otherwise to exercise dominion and control over tangible property" (PL 10.00 [8]).

The accusatory instrument provides:

Defendant's mere presence in a discount grocery store, without more, is insufficient to charge him with possession of a gambling device. The criminal court information is completely void of facts which would establish that defendant exercised dominion and control over the gambling device. This omission has created a jurisdictional defect in the accusatory instrument that cannot be cured by amendment nor waived by defendant's failure to make a motion to dismiss (Casey, 95 NY2d at 239). The court is obligated to dismiss the accusatory instrument; the People have no authority to proceed when the criminal court information fails to allege "facts of an evidentiary character" (CPL 100.15 [3]) demonstrating "reasonable cause" to believe defendant committed the crime charged (CPL 100.40 [4] [b]).

Accordingly, the accusatory instrument is hereby dismissed and sealing is stayed for 30 days.

The foregoing constitutes the decision and order of this court.Dated: September 9, 2014______________________Queens, New YorkJudge of the Criminal Court