People v. Ocasio

ROY WHEATLEY KING, J. Defendant is charged with loitering (Penal Law § 240.35 [2]) and loitering in the first degree (Penal Law § 240.36) in connection with an incident involving defendant and four codefendants that occurred on October 18, 2000, at approximately 11:50 P.M. at 174 Bay Street in the City of Rochester.

The accusatory instrument charges defendant and his codefendants with loitering for the purpose of unlawfully using or possessing a controlled substance. It also charges them with loitering in a public place for the purpose of gambling with dice. The factual portion of the accusatory instrument, authored by Rochester Police Officer Graham Hyland, reads in relevant part as follows: "When your complainant approached the defendants, several clear plastic zip-lock baggies containing a white powdery substance which did test positive for the presence of cocaine, were observed on the ground in the immediate vicinity of the defendants, who were observed to be gambling with dice outdoors." A supporting deposition from Rochester Police Officer Anthony Bongiovanni states that he conducted a field test of the contents of the baggies and the test results were positive for cocaine.

Defendant, by his attorney, filed a motion seeking various forms of relief, including dismissal of the charges on grounds that the accusatory instrument is insufficient to support the charges. With respect to the charge of loitering in violation of Penal Law § 240.35 (2), defendant asserts that the accusatory instrument is defective because the statute applies to proscribed conduct in a "public place" only and the accusatory instrument asserts that defendant was standing on the driveway in the rear yard of a private residence, which is not a public place. Defendant further asserts that the accusatory instrument is insufficient to support a charge of loitering in the first degree under section 240.36 of the Penal Law for two reasons: (1) the facts do not show that defendant was loitering for the purpose of using or possessing a controlled substance and (2) the term "any place" in the statute does not include a driveway in the rear yard of a private residence. The People oppose the motion and argue that defendant was properly charged under both provisions. With respect to the loitering for the purpose of gambling charge, the People argue that the driveway is a public place in which loitering for the purpose of gambling would be illegal. With respect to the loitering for the purpose of unlawfully using or possessing a controlled substance, the People contend that the factual allegations of the accusatory instrument are sufficient to lead to the conclusion that defendant was loitering for the purpose of unlawfully using or possessing drugs.

A person is guilty of loitering under subdivision (2) of Penal Law § 240.35 when he "[l]oiters or remains in a public place for the purpose of gambling with cards, dice or other paraphernalia." Article 240 of the Penal Law, entitled Offenses Against Public Order, provides some guidance inasmuch as it contains a definition of that term. "Public place" for purposes People v Onofre (51 NY2d 476, cert denied 451 US 987), involving an analogous subdivision, reasoned that under Penal Law § 225.00 (4) and (5) gambling is illegal only if a person advanced or profited from the gambling activity when acting other than as a player. Therefore, a person who gambled with dice as a casual player did not commit a crime, and likewise, a person who loitered for that purpose could not be engaged in criminal behavior.

A person is guilty of loitering in the first degree in violation of Penal Law § 240.36 "when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance, as defined in section 220.00 of this chapter." The gravamen of the offense, a class B misdemeanor, is lodged in the words "for the purpose of" using or possessing a dangerous drug (see, People v Robert J. L., 66 Misc 2d 191, 192). In People v Robert J. L. (supra ), the police were called to a private residence based upon a complaint by a neighbor that a group of boys, including defendant, had musical instruments and were playing loud music that disturbed the neighbor. When the police arrived, they found the boys at the table, on which there was a smoking pipe containing hashish. The court concluded that "[t]he mere fact that a pipe was on the table is insufficient evidence" to conclude that defendant and others were loitering for the purpose of using or possessing a dangerous drug (supra, at 193). It noted that no violation of the statute can be found to have occurred unless the "evidence discloses a pattern of behavior which transcends mere desire or intent," namely an overt act of "such nature and relevancy as to indisputably show the illicit purpose for the loitering" (People v Robert J. L., supra, at 192-193). The court further stated that "[a] pipe on the table does not create a presumption of purpose attributable to all" (People v Robert J. L., supra, at 193). Although the court's decision in that case was made at the conclusion of a nonjury trial and did not involve the sufficiency of the allegations of an accusatory instrument as here, the court's comments regarding the "purpose" of the loitering are relevant and instructive. The court concludes that the allegations of the accusatory instrument are insufficient to show that defendant was loitering for the purpose of using or possessing a dangerous drug. The fact that four baggies were found on the ground in the area where the five men were standing does not establish In reaching this conclusion, this court is cognizant of the problem of unlawful drug use and drug trafficking in our city. However, the "nebulous concept" of the loitering statutes is not the proper means for controlling the problem where, as here, the acts are alleged to have occurred in the backyard of a private residence (accord, People v Nowak, supra, at 473). For the reasons stated, the accusatory instrument charging loitering (Penal Law § 240.35 [2]) and loitering in the first degree (Penal Law § 240.36) is dismissed.