Here, the marijuana allegedly open to public view is not recovered and thus the sole allegation that the exchanged item was marijuana is conclusory. The deponent officer gives no description of the allegedly exchanged marijuana to support his conclusion. Further, it appears that the factual allegations regarding his conclusions based on his training and experience do not apply to the object that was allegedly exchanged with the other individual as he indicates that a field test was conducted on that marijuana and, as mentioned above, the marijuana allegedly exchanged in public view was not recovered. Simply, the police officer could not draw a conclusion based on the odor of a substance that he could not have smelled and he offers no physical description of the substance that was not recovered on which the court could reason he based his conclusion.
In addition, the allegations fail to establish any connection between the bag on the window sill and the defendant, or between the contents of the bag and the object that defendant allegedly exchanged with the other individual. Such connection would be needed for the court to reasonably infer from it that the exchanged object was marijuana. Faced with the bare facts in this accusatory instrument, the court is not able to infer that the item allegedly observed being exchanged by the defendant for money was marijuana.
Therefore, this court finds that the accusatory instrument fails to provide reasonable cause to believe that the defendant knowingly and unlawful possession of marijuana in a public place and open to public view. Accordingly, defendant’s motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is granted.
For the reasons discussed above, the defendant’s motion to dismiss the charge of Criminal Possession of Marijuana in the Fifth Degree (P.L. § 221.10(1)) on grounds of facial insufficiency is granted. However, sealing of the case is stayed for thirty (30) days to allow the People to serve and file a sufficient information, should they chose to do so. The case is adjourned to May 10, 2010, for the People to file superseding information or to seal this matter if the People do not file such an instrument. In view of this decision, defendant’s remaining motions and applications are moot.