Opinion
2016-307 Q CR
04-12-2019
The PEOPLE of the State of New York, Respondent, v. Wesley LAKINS, Appellant.
New York City Legal Aid Society (E. Deronn Bowen of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Merri Turk Lasky of counsel), for respondent.
New York City Legal Aid Society (E. Deronn Bowen of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Merri Turk Lasky of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with two counts of criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ). The accusatory instrument, executed and sworn to by a police officer, alleged the following:
"Deponent states that he is informed by [another p]olice [o]fficer... that [on or
about January 17, 2014, between 4:10 p.m. and 4:22 p.m., at the northeast intersection of 107th Avenue and 160th Street, in Queens County], he observed the defendant, Wesley Lakins, take possession of a plastic bag containing cocaine.
Deponent further states that he recovered two ziplock bags of cocaine from a black plastic bag that defendant was carrying in his left hand.
Deponent further states that the substance recovered is cocaine, is [sic] based upon said officer's experience as a police officer and training in the packaging and identification of controlled substances and marijuana."
After waiving prosecution by information, defendant pleaded guilty to an added count of disorderly conduct ( Penal Law § 240.20 ), in satisfaction of the entire accusatory instrument, and was sentenced to a conditional discharge. On appeal, defendant challenges the facial sufficiency of the counts charged in the accusatory instrument, contending that it contained a conclusory assertion that he possessed cocaine but did not provide sufficient evidentiary support for that determination.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v. Case , 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ; see also People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). Here, since defendant expressly waived prosecution by information, the accusatory instrument must be evaluated under the standards which govern that of a misdemeanor complaint (see Dumay , 23 N.Y.3d at 524, 992 N.Y.S.2d 672, 16 N.E.3d 1150 ), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3 ]; 100.40 [4] [a] ) and provides reasonable cause to believe that the defendant committed the offense charged (see CPL 100.40 [4 ] [b]; People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). "So long as the factual allegations of an [accusatory instrument] 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, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; see Dreyden , 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; People v. Kalin , 12 N.Y.3d 225, 231-232, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; People v. Konieczny , 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ).
Pursuant to Penal Law § 220.03, "[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." "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" ( Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ; see Dumas , 68 N.Y.2d at 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 ). Rather, "when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience," such as the identification of a controlled substance, "some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" ( People v. Jackson , 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; see People v. Aragon , 28 N.Y.3d 125, 129-130, 42 N.Y.S.3d 646, 65 N.E.3d 675 [2016] ; People v. Sans , 26 N.Y.3d 13, 17, 19 N.Y.S.3d 468, 41 N.E.3d 333 [2015] ; People v. Jennings , 22 N.Y.3d 1001, 980 N.Y.S.2d 372, 3 N.E.3d 709 [2013] ; Dreyden , 15 N.Y.3d at 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). In Kalin , 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381, the Court of Appeals examined an information which had charged the defendant with, among other things, criminal possession of a controlled substance in the seventh degree for the possession of nine plastic bags of heroin. It was argued on appeal that the deponent police officer's reliance on his experience and training in determining that the defendant had possessed heroin was insufficient to support the charge (see id. at 227-228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). The Court of Appeals rejected this argument, finding that the officer had presented more in the accusatory instrument than merely stating that he had used his experience and training as the foundation in drawing the conclusion that he had recovered heroin from the defendant's possession. Rather, with respect to the specific count in Kalin charging criminal possession of a controlled substance in the seventh degree, the officer's conclusion that the substance was heroin was based on the officer's training and experience in the identification and packaging of controlled substances, with the added factual assertion that the heroin was packaged in plastic bags. Thus, the Court in Kalin found that the accusatory instrument was facially sufficient to satisfy the requirements of an information, stating that, in its view, "the pleading standards of the Criminal Procedure Law would be extended beyond what the Legislature intended if we were to require the recitation of a mandatory catechism in an information that otherwise adequately identifies the particular drug, alleges that the accused possessed that illegal substance, states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" ( id. at 231-232, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). Additionally, the Court noted that requiring police officers to supply a few additional words describing the appearance of the substance seized, such as by alleging in an accusatory instrument charging possession of cocaine that the substance was "white in color" and "powdery," or "off-white" and "rock-like" in appearance, would necessitate the adoption of a formulaic recitation, and held that the absence of such phraseology does not render an instrument jurisdictionally defective ( id. at 232, 878 N.Y.S.2d 653, 906 N.E.2d 381 ; see People v. Smalls , 26 N.Y.3d 1064, 1067, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015] [reaffirming that a determination pertaining to whether an information contains adequate factual allegations establishing the elements of criminal possession of a controlled substance in the seventh degree is guided by Kalin ] ).
The relevant factual allegations found in Kalin to be sufficient for an information, which has "significantly more stringent facial sufficiency requirements" than a misdemeanor complaint ( Smalls , 26 N.Y.3d at 1067, 23 N.Y.S.3d 134, 44 N.E.3d 209 ), are very similar to those set forth in the instant misdemeanor complaint. Here, as in Kalin , 12 N.Y.3d at 231-232, 878 N.Y.S.2d 653, 906 N.E.2d 381, the accusatory instrument identified the particular drug; alleged that defendant possessed that illegal substance; stated the officer's familiarity with and training regarding the identification and packaging of the drug; and, by setting forth the type of packaging in which it was contained, provided some information as to why the officer concluded that the substance was a particular type of illegal drug—herein, cocaine. Consequently, for reasons similar to those stated in Kalin , we find the misdemeanor complaint to be facially sufficient, since it alleged facts of an evidentiary character supporting or tending to support the charges (see CPL 100.15 [3 ]; 100.40 [4] [a] ) and provided reasonable cause to believe that defendant committed the offenses charged (see CPL 100.40 [4 ] [b] ). Furthermore, the factual allegations contained therein supplied defendant with sufficient notice of the offenses charged to satisfy the demands of due process and double jeopardy (see Kalin , 12 N.Y.3d at 231, 878 N.Y.S.2d 653, 906 N.E.2d 381 ; Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ).
The dissent states that "[w]ithout any additional facts, such as whether the cocaine was in plain view or a description of the substance itself, the accusatory instrument failed to demonstrate that the officer had reasonable cause to believe that the black bag contained cocaine." However, as the within complaint is sufficient for pleading purposes, these issues, while they may be relevant to a motion to suppress evidence, are not relevant to the issue of the facial sufficiency of this accusatory instrument charging criminal possession of a controlled substance.
Accordingly, the judgment of conviction is affirmed.
ELLIOT and SIEGAL, JJ., concur.
WESTON, J.P., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:
In my opinion, the accusatory instrument was facially insufficient to support either of the two counts of criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ). As the majority correctly notes, for a misdemeanor complaint to be facially sufficient it must set forth "facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.15 [3 ]; see 100.40 [4] [a] ), and provide "reasonable cause to believe that the defendant committed the offense charged" ( CPL 100.40 [4 ] [b] ). "[T]he test for facial sufficiency ‘is simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy’ " ( People v. Aragon , 28 N.Y.3d 125, 128, 42 N.Y.S.3d 646, 65 N.E.3d 675 [2016], quoting People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ).
Here, the accusatory instrument failed to supply such notice. "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 ). To withstand the challenge based on facial insufficiency, the misdemeanor complaint herein had to allege facts from which it can be inferred that the officer had reasonable cause to believe that defendant had possessed cocaine. "[W]hen an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" ( People v. Sans , 26 N.Y.3d 13, 17, 19 N.Y.S.3d 468, 41 N.E.3d 333 [2015] [internal quotation marks omitted] ). No such explanation was asserted here. The officer's simple statement that he had observed defendant "take possession of a plastic bag containing cocaine" is a conclusory one. Without any additional facts, such as whether the cocaine was in plain view or a description of the substance itself, the accusatory instrument failed to demonstrate that the officer had reasonable cause to believe that the black bag contained cocaine (cf. People v. Bracy , 31 Misc.3d 130[A], 2011 N.Y. Slip Op. 50577[U], 2011 WL 1439866 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2011] [a misdemeanor complaint was sufficient where it alleged that the detective had observed cocaine in the defendant's hands] ). Although the officer alleged that he believed the recovered substance to be cocaine based on his experience and training in the packaging of controlled substances, that allegation, standing alone, is insufficient to meet the reasonable cause requirement. " ‘An arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant's possession was [cocaine]’ " ( People v. Aragon , 28 N.Y.3d at 129, 42 N.Y.S.3d 646, 65 N.E.3d 675, quoting People v. Dreyden 15 N.Y.3d at 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 ). Since the accusatory instrument failed to contain such an explanation, it was facially insufficient.
Accordingly, I vote to reverse the judgment of conviction and dismiss the accusatory instrument.