Opinion
No. 2015BX038246.
07-11-2016
The PEOPLE of the State of New York, v. Robert ENELUS, Defendant.
Darcel D. Clark, District Attorney, Bronx County by Kathleen A. Kelly, Assistant District Attorney, for The People. The Legal Aid Society by Anton Pribysh, Esq., for Defendant.
Darcel D. Clark, District Attorney, Bronx County by Kathleen A. Kelly, Assistant District Attorney, for The People.
The Legal Aid Society by Anton Pribysh, Esq., for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with Promoting Prison Contraband in the Second Degree (PL § 205.20[1] ).
Defendant moves for an order 1) dismissing the complaint, pursuant to CPL §§ 100.40 and 170.30(1)(a), as facially insufficient and 2) dismissing the complaint, pursuant to CPL §§ 170.30(1)(e) and 30.30, on speedy trial grounds.
The factual allegations in the superseding accusatory instrument sworn to by the deponent, CO Nyisha Bell, read as follows:
Deponent states that [on or about August 12, 2015, at approximately 7:45 PM at 18–18 Hazen Street, County of the Bronx, State of New York], Anna M. Cross Correctional Center at Riker's Island, she observed defendant to have on his person, in the center of his waist area, one (1) white balloon containing a dried, green, leafy substance with a distinctive odor.
Deponent further states that she is a New York City Correction Officer and that all visitors are informed via audio loop recording, in English and Spanish languages, inside of the visitor area on Riker's Island, of all prohibited items. Deponent further states that there are multiple, conspicuously, posted signs inside the visitor area on Riker's Island which read POSSESSION OF CONTRABAND, WILL RESULT IN IMMEDIATE ARREST.
Deponent further states that she is a New York City Correction Officer and that based upon her training and experience, the aforementioned substance is alleged and believed to be K–2, a synthetic marijuana.
Procedural History
On August 14, 2015, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. The complaint contained the hearsay allegations of CO Nyisha Bell, who had yet to sign a supporting deposition. Therefore, the case was adjourned to September 21, 2015 for conversion.
On September 8, 2015, the People filed with the court and served on defense counsel the supporting deposition of CO Bell and a statement of readiness.
On September 17, 2015, the People filed with the court and served on defense counsel a superseding information signed by CO Bell and a statement of readiness.
On September 21, 2015, this case was scheduled for conversion. The People maintained their readiness for trial. Defense counsel objected to the People's statement of readiness as they had yet to file a laboratory report. The Hon. Dakota Ramseur agreed with defense counsel and declined to deem the superseding instrument an information. The case was adjourned to November 10, 2015 for the People to file a laboratory report.
On October 8, 2015, the People filed with the court and served a Laboratory Analysis from the New York City Police Department (the “laboratory report”) and a statement of readiness. The laboratory report indicates that 1) no controlled substance was identified and 2) a possible federally controlled substance was indicated, but unconfirmed due to the unavailability of a standard for comparison.
On November 10, 2015, defendant failed to appear as he was in jail on a case in Kings County. The case was adjourned to November 18, 2015 for either defendant to appear or the People to produce.
On November 18, 2015, defendant made bail. The case was adjourned to November 20, 2015 for defendant to appear.
On November 20, 2015, the court set a schedule for motion practice. The case was adjourned to January 13, 2016 for decision. This case has been sub judice since that time.
Motion to Dismiss
Defendant makes two related arguments in support of dismissal on the grounds of 1) facial insufficiency and 2) the violation of his speedy trial rights. First, defendant notes that the original complaint filed on August 14, 2015 lacked any indication as to what substance was recovered from defendant, rendering it facially insufficient. Although the People filed a superseding accusatory instrument, defendant argues the superseding complaint is still defective. Defendant contends that the allegation as to CO Bell's general training and experience is inadequate to support her conclusion that the substance recovered from defendant was K–2. Defendant further avers that both the original complaint and the superseding complaint are devoid of any allegations that the substance found on defendant's person was contraband within the meaning of PL § 205.00(3). Defendant further points out that despite CO Bell's conclusion that defendant was in possession of K–2, the laboratory report, filed and served on October 8, 2015, failed to identify the substance recovered.
Second, defendant contends that any statement of readiness made prior to the filing of a laboratory report was illusory since they could not proceed to trial without one. As the People have never validly declared their readiness for trial and more than 90 days have elapsed since the commencement of this action, defendant argues that the instant complaint must be dismissed.
In opposition, the People argue that the superseding information is facially sufficient in that it provides adequately detailed facts of an evidentiary nature to support each and every element of the offense charged. The People aver that the superseding information alleges that CO Bell observed defendant to be in possession of a balloon containing K–2, which is undoubtedly contraband. The People also point out that since defendant is not charged with possessing synthetic marijuana, the identification of the substance recovered is not at issue. Therefore, the People contend that they do not have to prove beyond a reasonable doubt that the substance recovered was K–2. Rather, the People assert that they only need to prove that defendant knowingly and unlawfully introduced contraband into a detention facility. Based on the foregoing, the People maintain that they do not need a laboratory report for purposes of conversion.
As to defendant's claim regarding the expiration of speedy trial time, the People submit that they should only be charged with 26 days for the time period from August 14, 2015, the date of defendant's arraignment, to September 8, 2015, the date on which they filed and served an off-calendar statement of readiness and a supporting deposition. However, should this court determine that a laboratory report is necessary for purposes of conversion, then the People contend that they should be charged with 56 days for the time period from August 14, 2015 to October 8, 2015 .
In actuality, the time period from August 14, 2015 to October 8, 2015 consists of 55 days.
Facial Sufficiency
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729. Reasonable cause to believe that a defendant committed the crimes charged “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70 .10. “In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged.” People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A) (Crim Ct, N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103 (1986). “The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged.” People v. Sylla, 7 Misc.3d 8, 10 (App Term, 2d Dept.2005). As such, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000).
In a misdemeanor prosecution, a defendant has a statutory right to be prosecuted by a misdemeanor information. CPL § 170.65(1). Unless a defendant waives prosecution by information, the People must convert the complaint into an information by filing “sufficient supporting depositions ... that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant.” People v. Flores, 189 Misc.2d 665, 666 (Crim Ct, Queens County 2001).
“A person is guilty of promoting prison contraband in the second degree when [h]e knowingly and unlawfully introduces any contraband into a detention facility.” PL § 205.20(1). The term “contraband” is broadly defined as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order. PL § 205.00(3).
This court finds that the superseding accusatory instrument is deficient in two respects. First, it lacks any allegation demonstrating that the recovered substance is prohibited by statute, rule, regulation, or order. See, People v. Smalls, 36 Misc.3d 1226(A) (Sup Ct, Bronx County 2012) ; People v. Glover, 32 Misc.3d 1246(A) (Dist Ct, Nassau County 2011). For an information charging PL § 205.20(1) to be facially sufficient, “the item a defendant is accused of introducing into a detention facility must be “identified as contraband by the official action described.' “ Glover, 32 Misc.3d at *7, quoting People v. McDermott, 69 N.Y.2d 889, 891 (1987). Here, the superseding accusatory instrument, alleges, without any specificity, that visitors are apprised of all prohibited items by way of an audio loop recording. This allegation in no way demonstrates that the substance recovered from defendant was prohibited by statute, rule, regulation, or order. Therefore, the instant accusatory instrument fails to adequately allege that the substance recovered from defendant constitutes contraband within the meaning of the PL § 205.00(3).
Assuming arguendo that the superseding accusatory instrument adequately alleged that the substance recovered was prohibited by statute, rule, regulation, or order, it would still be facially insufficient. “Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement. Instead, the factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug.” People v. Kalin, 12 NY3d 225, 229 (2009) (internal citations omitted). In People v. Smalls, 26 NY3d 1064 (2015), the Court of Appeals was tasked with assessing the facial sufficiency of an information charging the offense of criminal possession of a controlled substance in the seventh degree. Guided by its holding in Kalin, the court held that:
the information was facially sufficient because is contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe. Smalls, 26 NY3d at 1067.
The court reiterated that “an information's description of the characteristics of a substance combined with its account of an officer's training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance.” Id.
This court finds that the superseding accusatory instrument lacks sufficient evidentiary facts to support CO Bell's conclusion about the nature of the substance found in defendant's possession. CO Bell bases her conclusion that defendant possessed K–2 upon her unspecified training and experience and the physical characteristics of the substance. The substance recovered is described simply as a “dried, green, leafy substance with a distinctive odor”. There are a number of other substances which readily fit that physical description, such as marijuana, oregano, or catnip. Due to the dearth of evidentiary facts, it is unclear how CO Bell was able to differentiate and determine that the substance recovered was K–2 rather than another dried, green, leafy substance with a distinctive odor. The inadequacy of the factual allegations is further highlighted by the fact that the laboratory report filed in the instant case indicates that the substance recovered could not be identified.
Speedy Trial
Here, the top count of the accusatory instrument is an A misdemeanor, which is punishable by a sentence of imprisonment of up to one year. PL § 70.15(1). Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony.
“[CPL 30.30 ] does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly.” People v. Sinistaj, 67 N.Y.2d 236, 239 (1986). “Whether the People have satisfied [their 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” People v. Cortes, 80 N.Y.2d 201, 208 (1992).
For CPL § 30.30 purposes, in order for the People to be “ready for trial”, the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. See, People v. Kendzia, 64 N.Y.2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337. “[P]resent readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence. People v. Caussade, 162 A.D.2d 4, 8 (1990). “A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock.” People v. England, 84 N.Y.2d 1, 4 (1994). The test is whether the People “have done all that is required of them to bring the case to a point where it may be tried.” Id.
Defendant has met his initial burden “by alleging that the prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 N.Y.2d 71, 77–78 (1995). To survive dismissal, the People must establish sufficient periods of excludable delay. People v. Santos, 68 N.Y.2d 859 (1986) ; People v. Berkowitz, 50 N.Y.2d 333 (1980). “[O]nce the People set forth the statutory exclusions on which they intended to rely, defendant [must] identify the specific legal and factual impediments to those exclusions.” People v. Beasley, 16 NY3d 289, 292 (2011).
In Kalin, supra, the Court of Appeals held that an information charging a defendant of criminal possession of a controlled substance was sufficient, even without a formal laboratory report or field test results, when the non-hearsay portions of the accusatory instrument identifies the particular type of controlled substance and the arresting officer's basis of belief. Critically, the Court of Appeals only determined that a formal laboratory report was not required to establish a prima facie case for drug possession.
In People v. Colon, 42 Misc.3d 1228(A) (Crim Ct, Bronx County 2014), the court granted the defendant's motion to dismiss on speedy trial grounds. The defendant was charged with criminal possession of marijuana in the fifth degree and unlawful possession of marijuana. In granting dismissal, the court found that the People's statement of readiness, filed on September 27, 2013, was illusory in light of the fact that a laboratory report was not filed until October 7, 2013. The court explained that absent a laboratory report, the People could not have been actually ready to proceed to trial since one of the necessary elements of their case was to prove that the substance recovered was marijuana. Since the substance recovered from the defendant was not tested until October 7, 2013, the statement of readiness filed and served on September 27, 2013 was illusory and constituted nothing more than an expectation of future readiness.
Similarly, in People v. Beckett, 44 Misc.3d 560 (Crim Ct, Bronx County 2014), the court, in dismissing the action on speedy trial grounds, held that the People's statement of readiness was illusory and ineffective because the People did not have proof that the substances recovered from the defendant were a controlled substance and marijuana until after the filing of a laboratory report. The court further found that “the People could not have been ready to satisfy their burden of proof and establish all elements of the charges at the time they stated ready in either case .” Id. at 580.
As illustrated by the foregoing cases, a finding that the People have a facially sufficient information is not the equivalent of a finding that the People are actually ready to proceed to trial. Trial readiness and conversion are not one and the same. Although a laboratory report is not always required to convert a complaint charging a defendant with possession of an illegal drug, the People cannot be ready to proceed to trial and establish all of the elements of the charge without a laboratory report confirming that the substance recovered from a defendant was an illegal drug.
Contrary to the People's arguments, the identification of the substance recovered is squarely at issue because CO Bell has specifically identified the substance as K–2, which purportedly constitutes contraband within the meaning of PL § 205.00(3). Even though defendant is not charged with possessing synthetic marijuana, it is axiomatic that the People must first identify the substance recovered, either by way of a laboratory report or in some other manner, in order to prove that the substance recovered constitutes contraband within the meaning of PL § 205.00(3). Consequently, any declaration of readiness made prior to the filing of a laboratory report identifying the substance recovered from defendant is a ity.
The laboratory report filed in the case at bar never identified the substance recovered. To date, the People have yet to identify the substance recovered from defendant. Thus, this court charges the People with the entire period of prereadiness delay from August 14, 2015 to November 20, 2015, for a total of 98 days. All time after November 20, 2015 is excluded pursuant to CPL § 30.30(4)(a) as a reasonable period of delay occasioned by motion practice. The People have exceeded their statutorily prescribed time of 90 days.
Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL CPL §§ 170.30(1)(a), (e), and 30.30, is granted and the action is hereby dismissed.
This constitutes the decision and order of this court.