Opinion
06-06-2016
The PEOPLE of the State of New York, Respondent, v. Ruben CRUZ, Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York City (Adrienne Gantt of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Marie John–Drigo of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York City (Adrienne Gantt of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Marie John–Drigo of counsel), for respondent.
PRESENT: SOLOMON, J.P., WESTON and ELLIOT, JJ.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Gilbert C. Hong, J.), rendered May 7, 2013. The judgment convicted defendant, after a nonjury trial, of criminal possession of marihuana in the fifth degree. ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
Defendant was charged, among other things, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10[1] ), and, after a nonjury trial, was found guilty of that charge. Insofar as is relevant to this appeal, the information alleged that defendant had committed the offense of criminal possession of marihuana in the fifth degree, in that, “on or about ... April 12, 2010 at approximately 05:25 PM at [sic ] front of 43 Stockholm Street County of Kings, State of New York,” defendant knowingly and unlawfully possessed marihuana “in a public place, as defined in Penal Law Section 240.00.” Defendant was “in possession of a quantity of marihuana that was visible to passers-by in that the informant did recover said quantity of marihuana from on the ground where the informant observe[d] the defendant drop it.”
Defendant contends for the first time on appeal that the information was jurisdictionally insufficient with respect to the “public place” element of criminal possession of marihuana in the fifth degree. A defendant may challenge the jurisdictional sufficiency of an accusatory instrument for the first time on appeal because “[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). As defendant did not waive prosecution by information, the instrument must contain factual allegations that, if true, establish each element of the offense charged and the defendant's commission thereof (see CPL 100.40[1][c] ; People v. Jackson, 18 N.Y.3d 738, 741–742, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). However, a claim that the information failed to set forth nonhearsay allegations of an element of the offense charged must be preserved by an objection or motion in the court below (see People v. Keizer, 100 N.Y.2d 114, 121–122, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ; People v. Casey, 95 N.Y.2d 354, 361–367, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; People v. Battle, 37 Misc.3d 142[A], 2012 N.Y. Slip Op. 52278[U], 2012 WL 6554658 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2012] ). An accusatory instrument that alleges only that the defendant possessed marihuana opposite or in front of a particular address, in violation of Penal Law § 221.10(1), without more, is facially insufficient with respect to the element that the possession occurred in a “public place,” as such term is defined in Penal Law § 240.00(1) (People v. Afilal, 26 N.Y.3d 1050, 22 N.Y.S.3d 405, 43 N.E.3d 762 [2015] ). The accusatory instrument must plead “the public nature of defendant's location,” for example, “by alleging that he was standing on a sidewalk or in a park, when the officer saw him” in possession of marihuana, thereby describing a location within the definition of Penal Law § 240.00(1) more precisely (People v. Afilal, 26 N.Y.3d at 1052, 22 N.Y.S.3d 405, 43 N.E.3d 762, citing with approval People v. Campbell, 41 Misc.3d 143[A], 2013 N.Y. Slip Op. 52057 [U], *2, 2013 WL 6500881 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2013] [an accusatory instrument alleging that the officer observed the defendant on a sidewalk which is a public place, and in possession of a quantity of marihuana is jurisdictionally sufficient] ). The information in the case at bar was jurisdictionally defective, as it did not plead, with the required specificity, the public nature of defendant's location (see People v. Afilal, 26 N.Y.3d at 1052, 22 N.Y.S.3d 405, 43 N.E.3d 762 ).
In light of our determination, we need not reach defendant's additional contentions.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
SOLOMON, J.P., WESTON and ELLIOT, JJ., concur.