Opinion
2015–1879 RI CR
01-19-2018
The PEOPLE of the State of New York, Respondent, v. Philip D'ANGELO, Appellant.
New York City Legal Aid Society (Shane Tela, Esq.), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
New York City Legal Aid Society (Shane Tela, Esq.), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to one count of criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ) in satisfaction of an accusatory instrument which charged him with four counts of that crime. On appeal, defendant contends that the accusatory instrument was facially insufficient since it failed to establish his actual or constructive possession of the controlled substances.
Since defendant expressly waived prosecution by information, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay , 23 NY3d 518, 524 [2014] ), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge ( CPL 100.15 [3 ] ) and provides reasonable cause to believe that defendant committed the crime charged ( CPL 100.40 [4 ] [b]; see People v. Dumas , 68 NY2d 729, 731 [1986] ). Such a challenge to the facial sufficiency of the instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v. Dreyden , 15 NY3d 100, 103 [2010] ; People v. Lucas , 11 NY3d 218, 220 [2008] ; People v. Konieczny , 2 NY3d 569, 573 [2004] ). Moreover, so long as the factual allegations of an accusatory instrument provide a defendant notice sufficient to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see Dreyden , 15 NY3d at 103 ; People v. Kalin , 12 NY3d 225, 231–232 [2009] ; Konieczny , 2 NY3d at 575 ; People v. Casey , 95 NY2d 354, 360 [2000] ).
"A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance" ( Penal Law § 220.03 ). Pursuant to Penal Law § 220.25 (1), "[t]he presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found." Here, the accusatory instrument, together with the supporting deposition, alleged that controlled substances were found in a vehicle in which defendant was sitting. Consequently, defendant's challenge to the information on the ground that it failed to contain factual allegations demonstrating reasonable cause to believe that defendant possessed the controlled substances is without merit (see People v. Schroeder , 15 Misc 3d 139[A], 2007 NY Slip Op 50983[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see also People v. Leyva , 38 NY2d 160, 168 [1975] ).
Accordingly, the judgment of conviction is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.