Opinion
2021-51080
11-16-2021
The People of the State of New York, Respondent, v. Karma Loday, Defendant-Appellant.
Unpublished Opinion
PRESENT: Edmead, P.J., Hagler, Silvera, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Stephen Antignani, J., on motion to dismiss; Robert Straus, J.H.O., at plea and sentencing), rendered July 26, 2016, convicting him, upon his plea of guilty, of disorderly conduct, and imposing sentence.
Judgment of conviction (Stephen Antignani, J., on motion to dismiss; Robert Straus, J.H.O., at plea and sentencing), rendered July 26, 2016, affirmed.
Since defendant did not waive prosecution by information, we assess the sufficiency of the accusatory instrument based on the standard applicable to an information (see People v Hatton, 26 N.Y.3d 364, 368 [2015]). So viewed, the information charging unlicensed general vending (see Administrative Code of City of NY § 20-453) was jurisdictionally valid because it contained "nonconclusory factual allegations that, if assumed to be true, address[ed] each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense" (People v Middleton, 35 N.Y.3d 952, 954 [2020], quoting People v Matthew P., 26 N.Y.3d 332, 335-336 [2015]). The information - comprising the misdemeanor complaint and supporting deposition of the arresting police officer - recited that the officer observed defendant for several minutes standing "across from 10 Columbus Circle," and "opp. 10 Columbus Circle," "immediately next to a table," "display[ing] and offer[ing] for sale 7 Russian dolls"; that defendant was the only person in immediate proximity to the merchandise and that when approached and asked the price of the merchandise, defendant responded "forty dollars." Contrary to defendant's claim, these allegations were nonconclusory and legally sufficient to satisfy the "public space" element of the offense (Administrative Code § 20-452[d]; see People v Lecler, 62 Misc.3d 141 [A], 2019 NY Slip Op 50074[U] [App Term, 1st Dept 2019], lv denied 33 N.Y.3d 978 [2019]).
Inasmuch as defendant pleaded guilty to disorderly conduct, he lacks standing to challenge the constitutionality of Administrative Code § 20-453 (People v DiRaffaele, 55 N.Y.2d 234, 241 [1982]; People v Knight, 169 A.D.3d 493, 494 [2019], lv denied 33 N.Y.3d 978 [2019]).
Even if defendant had standing, his claim that section 20-453 was unconstitutionally applied to him was forfeited by the guilty plea (see People v Levin, 57 N.Y.2d 1008, 1009 [1982], rearg denied 58 N.Y.2d 824 [1983]; People v Devers-Scott, 248 A.D.2d 1024 [1998], lv denied 92 N.Y.2d 850 [1998]; People v Brown, 123 A.D.2d 473, 474 [1986]; People v Greenfield, 100 A.D.2d 752 [1984]), and, in any event, lacks merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur