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Penal Law § 220.03…cont

Where the factual allegations contained in 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”. Ultimately, “the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged”.

Under Penal Law § 220.03, “[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance.” Under Penal Law § 10.00 (8), to “possess” means to have physical possession of, or dominion and control over tangible property. In this case the defendant is alleged to have constructively possessed the alleged crack cocaine and drug paraphernalia recovered from the apartment, and to have physically possessed the alleged crack cocaine recovered from his pants pocket.

In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized. Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant’s control.

A defendant has been found to have control over premises which he provides as a home address to city agencies. Here, the defendant is accused of knowingly and unlawfully possessing a quantity of crack cocaine and purported drug paraphernalia which were allegedly recovered from “the defendant’s apartment.” Possession suffices to permit the inference that the possessor knows what he possesses, especially if it is in his hands, on his person, in his vehicle or on his premises. Apart from the deponent officer’s assertion that the apartment was “the defendant’s,” however, there are no evidentiary facts alleged to support the inference that the defendant owned or occupied the apartment. For example, there is no allegation that the officer observed the defendant’s name on a lease to the apartment, or that he observed mail addressed to the defendant at the apartment, or even that the defendant admitted to the officer that he lived in the apartment. Hence, the officer’s statement that the apartment was “the defendant’s” is completely conclusory. Without evidentiary facts to demonstrate that the defendant exercised dominion and control over the premises, the sole allegation that the items were recovered from “the defendant’s apartment” is insufficient to provide reasonable cause to believe that the defendant knowingly possessed the alleged crack cocaine and drug paraphernalia recovered from the apartment in this case. Indeed, although constructive possession may not be inferred from the defendant’s mere presence in premises where contraband is found, the defendant is not even alleged to have been present in the apartment at the time the items were seized.

Accordingly, without evidentiary facts demonstrating the defendant’s dominion and control over the premises or corroboration of his ownership of the apartment, and without corroboration that the bag recovered from the defendant contained cocaine, the complaint is facially insufficient and consequently is dismissed. The defendant’s remaining points are moot.
Possession of illegal substance like drugs is punishable under the law.

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