The defendant, William Stazzone, along with Arthur Stazzone, Philip White, Victor Stazzone, Freddy Sagastume, Edward Singh, and Puja Bipat, is charged with three counts of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law ["PL"] § 220.03) and one count of Unlawful Possession of Marihuana (PL § 221.05). The defendant, in an omnibus motion, seeks 1) Dismissal of the Charges for Facial Insufficiency (Criminal Procedure Law ["CPL"] 100.15, 170.30), 2) a Darden Hearing, 3) Suppression of Physical Evidence, 4) to Controvert of the Search Warrant, 5) Preclusion of Sandoval Material, and 6) Reservation of Rights. The People seek a protective order pursuant to CPL 240.50 denying and/or limiting the defendants' discovery of the affidavit in support of the search warrant. The People provided the Court with 1) the search warrant, 2) a copy of the original affidavit supporting the application for the search warrant and 3) a copy of the affidavit supporting the application for the search warrant containing the People's proposed redactions.

The accusatory instrument alleges, in pertinent part, that on or about [*2]February 12, 2015, between 6:00 a.m. and 6:05 a.m., inside of 90-14 102 Street, in Queens County, New York, Detective Vincent Ferrante:

Deponent further states that during the search of the above mentioned location defendants Puja Bipat and Arthur Stazzone were present and in a bedroom in the basement of said location.

Deponent further states that he recovered two (2) zip locs containing a quantity of marijuana, seven (7) zip loc[s] containing cocaine residue, five (5) Methadone pills, two (2) Alprazolam pills (Xanax), and one Clonozapam from the above mentioned bedroom.

Deponent further states that his conclusions that the substances recovered are marijuana, cocaine, Methadone pills, Alprazolam pills and Clonazapam are based on his experience as a police officer and on his training in the identification and packaging of controlled substances and marijuana

Deponent further states that during the above mentioned search, Defendant William Stazzone was present in a second bedroom in the basement of said location.

Deponent further states that he recovered a zip loc bag containing a quantity of cocaine in the hallway of the above mentioned basement.

Deponent further states that his conclusion that the substance recovered is cocaine is based upon his experience as a police officer and on his training in the identification and packaging of controlled substances and marijuana.

Deponent further states that defendant William Stazzone's Driver's License lists the above mentioned location as his address.

Deponent further states that during the above mentioned search, defendant Victor Stazzone was present in the living room on the first floor of the above mentioned location

Deponent further states that during the above mentioned search, Defendants [*3]Philip White, Freddy Sagastume, and Edward Singh were present and in the kitchen area of the second floor of the above mentioned location.

Deponent further states that he recovered two (2) Alprazolam pills (Xanax), one oxycodone, one crack pipe containing cocaine residue, and one glassine of heroine in the above mentioned kitchen area on the second floor.

Deponent further states that his conclusions that the substances recovered are Alprazolam, Oxycodone, cocaine, and heroine are based upon his experience as a Police Officer and on his training in the identification and packaging of controlled substances and marijuana "

An information is facially sufficient if it contains facts of an evidentiary character providing reasonable cause to believe the defendant committed the offense charged (CPL 100.15[3]; see People v Casey, 95 NY2d 354, 359, [2000]; see also People v Dumas, 68 NY2d 729 [1986]; People v Alejandro, 70 NY2d 133 [1987]). The allegations must tend to support every element of the charges and the defendant's commission thereof (see id.). Reasonable cause exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10[2]). The failure to allege a complete element of a charged offense is a non-waivable jurisdictional defect (see People v Fernandez, 20 NY3d 44, 47 [2012]; People v Dreyden, 15 NY3d 100, 103 [2010]; Casey, 95 NY2d at 366-367; People v Jones, 9 NY3d 259, 263 [2007]).

Additionally, the accusatory instrument should be given "a fair and not overly restrictive or technical reading" where the factual allegations prevent a defendant from being tried twice for the same offense (Casey, 95 NY2d at 390). Further, reliance on a conclusory factual allegation to support any element of a charge will render the accusatory instrument defective and facially insufficient (see Dumas, 68 NY2d at 730; see also Alejandro, 70 NY2d at 136; People v. Courtney, 15 Misc 3d 140[A] [App. Term,1st Dept 2007]; People v Santiago, 26 Misc 3d [*4]1205[A] [NY Co., Crim. Ct. 2009])

"A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance" (PL § 220.03). "A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana" (PL § 221.05). The term "possess" is defined as "to have physical possession or otherwise to exercise dominion or control over tangible property" (PL § 10.00[8]).

In the instant case, none of the contraband was recovered from the defendant's person. Further, the statutory "room presumption" under PL § 220.25(2) is inapplicable in this case. PL § 220.25(2) provides, in relevant part that "[t]he presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the times such controlled substance was found..." (PL § 220.25 [2]) The facts fail to demonstrate that there existed "circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare [the marijuana] for sale" (PL § 220.25[2]). Additionally, the facts do not establish that the defendant was in close proximity to the marijuana recovered inasmuch as he was observed in the second bedroom in the basement while illegal substances were recovered from another basement bedroom, the basement hallway, the livingroom on the first floor, and the kitchen area on the second floor.

Therefore, the facts alleged must demonstrate that the defendant constructively possessed the marijuana and controlled substances. "The People must show that the defendant exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized" (People v Manini, 79 NY2d 561, 573 [1992]).Mere "presence in a public place does not itself prove dominion and control over contraband discovered there" (People v Pearson, 75 NY2d 1001, 1002 [1990]). Factors which may demonstrate dominion and control include whether the defendant owned or rented the premises or whether the defendant is the sole occupant of the premises (see People v Elwick, 20 Misc 3d 1141 (A) (NY Co. Crim. Ct. 2008).

Here, the defendant is alleged to have been in the second basement bedroom when a search warrant was executed. Illegal drugs were found in another basement bedroom, the basement hallway, the livingroom on the first floor, [*5]and the kitchen area on the second floor. These facts are insufficient to demonstrate that the defendant exercised the requisite dominion and control over the areas from which the marijuana and controlled substances were recovered by the police (see People v Brown, 240 AD2d 675 [2d Dept. 1997][evidence found insufficient to establish dominion and control, where defendant was girlfriend of target of search warrant, and was merely present when contraband was discovered]).

The foregoing constitutes the opinion, decision, and order of the court.

Kew Gardens, New York

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