6. The petition is insufficient to allege the public place element since it merely alleges that the marijuana was found “inside of the center console” of a vehicle. In People v McNamara (78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788 ), the Court of Appeals held that the interior of a parked car may be considered a "public place" provided that the information alleges facts which establish that "the car's interior is visible to a member of the passing public, and the vehicle is situated in a place where it likely would be observed by such a person."
7. While it has been held that the inside of a vehicle parked on a city street is visible to the public under certain circumstances and can be considered a public place, the facts of the instant case are distinguishable because the marijuana was alleged to be found “inside the center console” of the vehicle. In People v Santiago, 2009 NY Slip Op 52670U, 3-4 (N.Y. City Crim. Ct. Dec. 14, 2009) the Court held that marijuana found in the center console of a car parked on a city street was not in a public place, stating: “.. notwithstanding the fact that the vehicle on the street in which the defendant allegedly possessed the marihuana constitutes a "public place," it cannot be inferred that the marihuana was "open to public view." Rather, the reasonable inference to be drawn from the factual allegations is that the marihuana was not visible to the public since it was recovered from a center console, which is presumed to be a closed compartment (see e.g., People v DiMatteo, 62 AD3d 418, 419, 878 N.Y.S.2d 319 [1st Dept 2009]; People v Confessore, 12 Misc 3d 1192[A], 824 N.Y.S.2d 769, 2006 NY Slip Op 51537[U] ["in order to search the closed center console it was necessary for [the officer] to open the console's lift top"]; People v Diggins, 235 Ill. 2d 48, 2009 WL 3212447, 5 [Ill]; State v Henning, 289 Kan 136, 138, 209 P.3d 711 ; State v Ellis, 205 P3d 791, 2009 WL 1036110, 3, 4 [Kan App]; [**9] Vines v State, 296 Ga App 543, 544, 675 S.E.2d 260 ; Strikertaylor v State, 997 So 2d 488, 489 [2d Cir 2008]). The assertion that the marihuana was "open to public view" merely tracks the statutory language of Penal Law 221.10(1) and is conclusory. Had the information specifically stated that the marihuana was "on top of" the center console, that would have sufficed to demonstrate that the marihuana was open to public view. In a facial sufficiency review, however, the court is confined to the four corners of the accusatory instrument and may not import additional evidentiary facts into the complaint and supporting deposition beyond what is alleged (see People v Thomas, 4 NY3d 143, 146, 824 N.E.2d 499, 791 N.Y.S.2d 68 ). Because there are no evidentiary facts from which to infer that the marihuana allegedly possessed by the defendant was open to public view, the information fails to [*4] plead an essential element of the crime charged. People v Santiago, 2009 NY Slip Op 52670U, 3-4 (N.Y. City Crim. Ct. Dec. 14, 2009) (attached)
8. Defendant respectfully submits that the Court should follow the reasoning of Santiago and hold that marijuana found in the center console of an automobile was not open to public view and dismiss count one of the information.
5. As to the charge of Penal Law § 221.10 (1), the complaint must allege that the defendant knowingly possessed marijuana in a public place and that such marijuana was either burning or open to public view (emphasis added). People v. Dunkley, 192 Misc. 2d 305, 307 (N.Y. Misc. 2002).