SOME SAMPLE TEXT FROM A WRITEN MOTION TO DISMISS A POSSESSION OF COCAINE CASE ON GROUNDS THAT THE CRIMINAL COMPLAINT IS  FACIALLY INSUFFICIENT


While the following motion excerpt is for a possession of cocaine case, it would be applicable to any controlled substance charge, including Heroin, PCP etc..

  1. In the instant case, there are no allegations giving reasonable cause to believe that Defendant, either actually, constructively, or, pursuant to the statutory “drug factory” presumption of PL 220.25(2) was in possession of a controlled substance. There are no allegations that the pipe stem or the residue within was in plain view when recovered by Police Officer James Diaz. Diaz merely informed the Deponent that he “recovered a pipe/stem containing crack cocaine from the living room table where defendant’s Williams and smith were standing.” The allegation is that it was recovered from and not on the table. Thus, there is no reasonable cause to believe that the residue found was in the plain view of Defendant smith. See .e.g., People v Rodriguez (1984, 2d Dept) 104 App Div 2d 832, 480 NYS2d 155. where the court held that :


“In a prosecution for criminal possession of a controlled substance, the evidence failed to establish beyond a reasonable doubt that defendant had constructive possession of cocaine, where there was no indication that defendant exercised, or that he could have exercised, any dominion or control over the cocaine in any manner, notwithstanding the fact that he was present in the hotel room in which the cocaine was kept, and where the presumption of knowing possession contained in Penal Law § 220.25(2) was inapplicable in that the cocaine was not in open view when it was discovered, but in an opaque bag behind a curtain on a window sill.”




  1. Moreover, there are no allegations in the complaint that Defendant exercised dominion and control over the table in the living room. See e.g.,, People v. Elwick, 2008 NY Slip Op 51812U, 3 (N.Y. City Crim. Ct. 2008) where the Court held that:
  2. Constructive possession requires more than a defendant's mere presence in a location where contraband is recovered. 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 (see People v Manini, 79 NY2d 561, 573, 594 N.E.2d 563, 584 N.Y.S.2d 282 [1992]). Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant's control (see People v Tirado, 47 AD2d 193, 366 N.Y.S.2d 140 [1st Dept 1975]).


Factors which tend to demonstrate a defendant's control over particular premises are the defendant's provision of the premises' address as a home address to city agencies (People v Vasquez, 142 AD2d 698, 530 N.Y.S.2d 601 [2d Dept 1988]; the defendant's sole occupancy of premises where contraband is found in plain view (Matter of Dirhim A., 178 AD2d 339, 577 N.Y.S.2d 615 [1st Dept 1991]); the defendant's named tenancy on a lease to premises where contraband is recovered (People v Torres, 68 NY2d 677, 496 N.E.2d 684, 505 N.Y.S.2d 595 [1986]); and the defendant's possession of a key to premises where contraband is recovered (see People v Torres, 68 NY2d 677, 496 N.E.2d 684, 505 N.Y.S.2d 595 [1986]; People v Sandobar, 191 AD2d 375, 595 N.Y.S.2d 197 [1st Dept 1993]; Matter of Dirhim A., 178 AD2d 339, 577 N.Y.S.2d 615 [1st Dept 1991]; People v Armstrong, 160 AD2d 206, 553 N.Y.S.2d 169 [1st Dept 1990]; People v Robertson, 61 AD2d 600, 403 N.Y.S.2d 234 [1st Dept 1978]; People v Vasquez, 142 AD2d 698, 530 N.Y.S.2d 601 [2d Dept 1998]).


Here, the defendant is alleged to have been sitting on the couch in the living room in an apartment when a search warrant was executed. At that time, the three co-defendants were also present in the living room. When the police entered, one of the three co-defendants remained standing in the living room while the other two fled to one of the apartment bedrooms. Underneath the bed in that bedroom, three pipes with crack residue, five ziplock bags with crack residue, and three marihuana cigarettes were found. In a second bedroom two pipes with crack residue were found in a dresser drawer. As the defendant correctly points out, the so-called "drug factory" presumption under PL § 220.25 may not be used to impute possession of the drugs to her. For the presumption to apply, the drugs must both be found in "open view in a room . . . in close proximity" to the defendant and "under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare [them] for sale" (PL 220.25 [2]). Here, the crack/cocaine and marihuana were found secreted under a bed and in a dresser drawer in two separate bedrooms while the defendant was seated on a couch in the living room. As such, they cannot be said to have been found in "open view in a room . . . in close proximity" to the defendant (see People v Martinez, 83 NY2d 26, 34, 628 N.E.2d 1320, 607 N.Y.S.2d 610 [1993]); People v Edwards, 23 AD3d 1140, 1141, 804 N.Y.S.2d 525 (4th Dept 2005)].


People v. Elwick, 2008 NY Slip Op 51812U, 3-4 (N.Y. City Crim. Ct. 2008)


4.      Although the CJA indicates that Defendant resides at the address and the rap sheet indicates the address as Defendant’s residence from 2005 thru 2009, neither the CJA nor the rap sheet are sworn allegations that are sufficient to convert the complaint into a jurisdictionally sufficient Information. Essentially, the allegations are limited to the “four corners of the Information and properly verified supporting depositions. See e .g., People v. Crisofulli, 91 Misc. 2d 424 (N.Y. City Crim. Ct. 1977). Also see, People v. Roslyn Sephardic Ctr., 2007 NY Slip Op 27387 (N.Y. App. Term 2007)


If you would like to discuss motions to dimiss call Robert Briere at 212-786-2999

Sample Dismissing cocaine motion language

Call Today for a Free Consultation

212-786-2999

               newyorkcitydefense@gmail.com