Opinion
570571/16
11-16-2021
The PEOPLE of the State of New York, Respondent, v. Karma LODAY, Defendant-Appellant.
Per Curiam.
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 NY3d 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 NY3d 952, 954 [2020], quoting People v Matthew P. , 26 NY3d 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 NY3d 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 NY2d 234, 241 [1982] ; People v Knight , 169 AD3d 493, 494 [2019], lv denied 33 NY3d 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 NY2d 1008, 1009 [1982], rearg denied 58 NY2d 824 [1983] ; People v Devers-Scott , 248 AD2d 1024 [1998], lv denied 92 NY2d 850 [1998] ; People v Brown , 123 AD2d 473, 474 [1986] ; People v Greenfield , 100 AD2d 752 [1984] ), and, in any event, lacks merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.