We take pride in holding the prosecution to its burden—because when the accusatory instrument is flawed, the law demands dismissal.
In a recent case in Suffolk County District Court, our office successfully secured a dismissal of a misdemeanor charge of Loitering in the First Degree (Penal Law § 240.36) after filing an omnibus motion challenging the legal sufficiency of the accusatory instrument.
What Was Alleged?
Our client was accused of loitering for the purpose of using or possessing a controlled substance. The accusatory instrument alleged only that our client had a lighter and was near another individual holding a pipe with burnt residue at a so-called “drug prone location.” It relied heavily on general assertions of the officer’s training and experience without identifying any specific controlled substance or facts showing our client’s intent to use or possess drugs.
Our Motion to Dismiss
We filed a comprehensive motion arguing that:
- There were no non-hearsay factual allegations establishing the elements of the charge, particularly the required intent;
- The complaint failed to show that any controlled substance was actually present or possessed by our client;
- Standing near someone else allegedly using drugs is not a crime.
We also requested suppression of statements and physical evidence, and raised other procedural challenges in a full omnibus motion.
The Court’s Ruling
The Court agreed with our argument and granted the motion to dismiss the charge under CPL §§ 100.15 and 100.40, finding the accusatory instrument was jurisdictionally defective. The Court specifically held that:
“There exist inadequate factual allegations establishing that the named defendant himself was at the subject location ‘for the purpose of unlawfully using or possessing a controlled substance,’ an element of the offense charged.”
The Court further noted that possession of a controlled substance was alleged only as to another person, and that the supposed substance was not even identified with sufficient factual support.
Why This Matters
Criminal charges—even low-level misdemeanors—can carry serious consequences. We believe that no one should face prosecution based on assumptions, generalizations, or guilt by association. Every element of a criminal charge must be established with specific, non-hearsay allegations—and when it’s not, dismissal is the proper remedy.
Charged with a Misdemeanor in Suffolk County or Beyond? We Can Help.
Whether it’s a traffic violation, drug-related offense, or misdemeanor loitering charge, we know how to challenge defective complaints and protect your rights.
📞 Call us today at (631) 724-5251
🌐 www.arpinopc.com
📍 Based in Hauppauge, proudly serving clients throughout Suffolk, Nassau, and beyond