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Penal Law § 220.03

The defendant was charged with one count of criminally using drug paraphernalia in the second degree and one count of criminal drug possession of a controlled substance in the seventh degree. The defendant has moved for dismissal for facial insufficiency, for disclosure of the search warrant and related documents, and for invalidation of the search warrant and suppression of the physical evidence seized pursuant thereto.

A New York Drug crime attorney said that in April 2008, inside of 97th Street in New York County, 18 ziplock bags containing crack cocaine residue were recovered from a bedroom in “the defendant’s apartment” and a crack pipe and a strainer containing crack cocaine residue were recovered from another bedroom in “the defendant’s apartment.”

Additionally, three large ziplock bags containing numerous small pink ziplock bags, four large ziplock bags containing numerous small clear ziplock bags, a scale, a glass Pyrex measuring cup, and a white cup, all allegedly intended for use in the packaging and dispensing of narcotic drugs, were also recovered from “the defendant’s apartment.” Further, a ziplock bag of crack cocaine was recovered from “the defendant’s apartment.” Finally, a clear ziplock bag containing crack cocaine and a ziplock containing marijuana was recovered from the defendant’s “right shorts pants pocket.”

Defendant claims that the complaint fails to establish his possession of the alleged crack cocaine and drug paraphernalia seized from the apartment by nonhearsay factual allegations. Specifically, he contends that the deponent police officer’s assertion that the apartment where these items were found was “the defendant’s apartment” is an uncorroborated hearsay allegation. Accordingly, he seeks dismissal of the complaint for facial insufficiency.
The Court held that in order to be facially sufficient, an information must substantially conform to the requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof.

The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone; however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt. Thus, “[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged”.

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