People v. Fabara

Full title: The People of the State of New York, Respondent, v. Alfredo Fabara…

Court: Supreme Court of New York, First Department

Date published: Apr 13, 2022

2022 N.Y. Slip Op. 50263 (N.Y. Sup. Ct. 2022)

Opinion

570660/18

04-13-2022

The People of the State of New York, Respondent, v. Alfredo Fabara, Defendant-Appellant.

PER CURIAM.

Unpublished Opinion

PRESENT: Edmead, P.J., Brigantti, Tisch, JJ.

PER CURIAM.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered July 30, 2018, convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Judgment of conviction (Laurie Peterson, J.), rendered July 30, 2018, affirmed.

In view of defendant's knowing waiver of the right to prosecution by information, the underlying accusatory instrument only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]). So viewed, the complaint charging the added count of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) was not jurisdictionally defective. The complaint "supplied the basis" (People v Smalls, 26 N.Y.3d 1064, 1067 [2015], quoting People v Kalin, 12 N.Y.3d 225, 231 [2009]) for the undercover officer's contention that the "clear plastic twist" that defendant handed to the undercover officer contained cocaine. The instrument recited that the officer believed that the subject substance was cocaine "based upon [her] professional training as a police officer in the identification of drugs, [her] prior experience as a police officer making drug arrests, an observation of the packaging, which is characteristic of this type of drug" (see People v Kalin, 12 N.Y.3d at 231-232), as well as "a laboratory analysis of the substance which confirmed that the substance" was cocaine.

Contrary to defendant's present contention, the identification of defendant as the perpetrator was established by the undercover officer identifying defendant by name as his initial contact and his subsequent personal observation of defendant as the person who gave him cocaine. Any further challenge to the identification of defendant was a matter to be raised at trial, not by insistence that the instrument was jurisdictionally defective (see People v Konieczny, 2 N.Y.3d 569, 577 [2004]).

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.