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The defendant in this case has been charged with criminal possession of a controlled substance in the 7th degree. This violates Penal Law section 220.03. The defendant has also been charged with endangering the welfare of a child. The defendant has moved for an order to dismiss the information as facially insufficient and to suppress any tangible property that was seized from him and also have any statements that he has made suppressed as well. Alternatively, the defendant is seeking a Dunaway/Mapp/Huntley hearing.
Case Discussion: Criminal Possession of Controlled Substance
Penal Law section 220.03 states that a person is guilty of criminal possession of a controlled substance in the seventh degree when he/she knowingly and unlawfully possesses any type of controlled substance.
The information provided to the court states that on the 15th of November, 2008, the defendant was observed in possession of three dollar bills that contained what is believed to be cocaine. The cocaine was in plain view on top of the television set of the defendant’s living room.
The defendant argues that this information is facially insufficient because it fails to contain non-hearsay allegations that would establish that the defendant possessed the substance on the dollar bills that were observed. The defendant argues that there is no allegation that he possessed the substance that was seized.
The court has reviewed this matter and is finding in favor of the defendant. There is no actual evidence of possession in this case and for this reason the first count of criminal possession of a controlled substance must be dismissed.
Court Discussion: Endangering the Welfare of a Child
A person is guilty of endangering the welfare of a child when he knowingly acts in a manner that is likely to be injurious to the physical, mental, or moral well-being of a child.
It is alleged that the defendant endangered the welfare of a child as the child in question saw the cocaine on top of the television set. There were also approximately four cases of empty beer cans all around the house. These acts are considered to be endangering to the welfare of a child as the defendant acted in a way that was likely to be injurious to a child.
The defendant argues that this evidence is facially insufficient because it fails to contain non-hearsay allegations that would establish that the defendant acted knowingly and that the alleged conduct was likely to cause injury to a child under the age of seventeen.
When reviewing the facts in regard to this issue against the defendant the court has failed to find that simply having drugs in the presence of a child is enough to consider as endangering the child. Additionally, the plaintiff has failed to show evidence to support their case against the defendant in regard to this matter. For these reasons, the court rules in favor of the defendant. The case against him is dismissed.
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