Opinion
2012-2190 K CR
01-08-2016
The People of the State of New York, Respondent, v. Jerome Harris, Appellant.
PRESENT: :
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered August 9, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a misdemeanor complaint with unlawful possession of marihuana (Penal Law § 221.05) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]). Pursuant to a negotiated plea and sentencing agreement, defendant pleaded guilty to criminal possession of marihuana in the fifth degree in satisfaction of the accusatory instrument and was sentenced to time served. On appeal, defendant argues that the accusatory instrument—in which the arresting officer alleged that he "had professional training . . . in the identification of marihuana"; that he "has previously made arrests for the . . . possession of marihuana"; that he had "previously seized marihuana that was determined to be such by the Police Department Laboratory"; that "the marihuana in this case possesses the same physical characteristics as the previously chemically identified marihuana"; and that the substance was recovered from a ziplock bag, which, by virtue of his "professional training as a police officer," he knows to be "a commonly used method of packaging marihuana"—is facially insufficient because the officer failed to state the physical characteristics of the substance on which he based his identification of marihuana.
Absent an "affirmative act" by a defendant to waive his right to be prosecuted by information (People v Dumay, 23 NY3d 518, 522 [2014]), the facial sufficiency of the accusatory instrument is reviewed by the standards appropriate to an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d 225, 228 [2009]; People v Weinberg, 34 NY2d 429, 431 [1974]; People v Chan, 36 Misc 3d 44, 46 [App Term, 2d, 11th & 13th Jud Dists 2012]). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1] [c]; People v Suber, 19 NY3d 247, 252 [2012]; People v Kalin, 12 NY2d at 228-229; People v Hargrove, 47 Misc 3d 136[A], 2015 NY Slip Op 50499[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015]). By pleading guilty, defendant forfeited any claim of a hearsay defect in the accusatory instrument (People v Keizer, 100 NY2d 114, 123 [2003]; People v Martinez, 45 Misc 3d 134[A], 2014 NY Slip Op 51725[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2014]).
In the case of a controlled substance charge, the factual allegations of an information "must establish the basis of the arresting officer's belief that the substance seized was an illegal drug" (Kalin, 12 NY3d at 229; see also People v Dumas, 68 NY2d 729, 731 [1986]), but need not necessarily include a "formulaic recitation" of the appearance of the substance (Kalin, 12 NY3d at 232; cf. Matter of Jahron S., 79 NY2d 632, 639-640 [1992]). Thus, the arresting officer's assertion that he identified the substance seized from defendant as marihuana because substances identical in appearance had been tested and proved to be marihuana and because it was packaged in a manner commonly found in marihuana cases, sufficed, in the context of a misdemeanor information (see People v Suber, 19 NY3d at 252), to satisfy the requirement that it state facts "showing the basis for the conclusion that the substance . . . was actually marihuana" (People v Dumas, 68 NY2d at 731; compare People v Pearson, 78 AD3d 445, 445 [2010], and People v Churchill, 38 Misc 3d 148[A], 2013 NY Slip Op 50380[U], *1 [App Term, 1st Dept 2013], with People v Herbas, 47 Misc 3d 154[A], 2015 NY Slip Op 50838[U], *1 [App Term, 1st Dept 2015], and People v Grove, 33 Misc 3d 126[A], *1 [App Term, 9th & 10th Jud Dists 2011]).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 08, 2016