Does the accusatory instrument sufficiently allege the element of possession of marijuana recovered from the bag on the window sill?

However, there is a serious question as to whether the accusatory instrument sufficiently alleges the element of the defendant's possession of the marijuana recovered from the bag on the window sill. (See P.L. 10.00(8) (to "`[p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property"); see also People v. Sierra, 45 N.Y.2d

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56, 60 [1978]; People v. Manini, 79 N.Y.2d 561, 573 [1992] ("constructive possession" is demonstrated by showing that defendant exercised a level of control over the place where the property is found, or over the person from whom the property is seized, sufficient to give him or her the ability to use or dispose of the property).) The court need not resolve that issue at this juncture because it finds that the instrument entirely fails to allege that this marijuana was open to public view. Indeed, the allegations indicate just the opposite, that the marijuana was inside a black bag. Allegations that marijuana is found in places where it could not be seen by passersby are insufficient to make out the open to public view element. (Santiago, 26 Misc. 3d 1205(A) (allegation that marijuana was recovered from center console of car, presumably a closed compartment, failed to demonstrate that the marijuana was open to public view).)