Opinion
2014BX055720
06-10-2015
The People of the State of New York, Plaintiff, v. Anthony Smith, Defendant.
Appearances of Counsel The People — Robert T. Johnson, District Attorney, Bronx County by Fabio A. Gomez, Assistant District Attorney. Defendant — Victor E. Bryant
Appearances of Counsel
The People — Robert T. Johnson, District Attorney, Bronx County by Fabio A. Gomez, Assistant District Attorney.
Defendant — Victor E. Bryant
Mary V. Rosado, J.
Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) and Promoting Prison Contraband in the Second Degree (Penal Law § 205.20 [2]). By Notice of Motion and Affirmation dated March 14, 2015 (served and filed on April 20, 2015), Defendant moves for the dismissal of all charges on the ground that the accusatory instrument is facially insufficient and for other relief. By Affirmation in Opposition dated June 3, 2015, the People oppose dismissal, arguing that the accusatory instrument is facially sufficient. In rendering a decision, this ourt reviewed Defendant's Affirmation dated March 14, 2015, People's Affirmation in Opposition dated June 3, 2015, the court file, and relevant statutes and case law.
Defendant's motion to dismiss for facial insufficiency is denied.
Timeliness of Motion
Criminal Procedure Law § 255.20 (1) provides that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Defendant was arraigned on October 14, 2015. He filed an omnibus motion, including a facial sufficiency challenge, on April 20, 2015. The People filed their response June 3, 2015. The facial sufficiency of a misdemeanor information is a non-waivable jurisdictional defect (People v Hall, 48 NY2d 927 [1979]). A challenge to a jurisdictionally defective information may be raised at any time, even after a guilty verdict. Therefore, prudence counsels in favor of deciding Defendant's facial sufficiency challenge at this juncture. Although filed more than 45 days from the date of arraignment, the court granted Defendant additional time to file his motion. The court also afforded the People an opportunity to submit their response. In exercise of its discretion, this court shall also decide the balance of Defendant's motion on its merits.
According to the most recent motion schedule, Defendant's motion was due April 1, 2015.
According to the most recent motion schedule, The People's response was due May 28, 2015.
Factual Allegations
The information alleges, in pertinent part, that on or about August 12, 2014, at approximately 8:30 PM, at the Anna M. Kross Center, the following occurred:
Deponent is informed by CO Tiffany Massey of DOC, Shield No. 13753, that at the above time and place, Anna M. Kross Center, a correction facility, informant observed the defendant to have on his person, inside of his identification card which he was wearing, two (2) orange strips.
Deponent is further informed by informant, that based upon informant's training and experience, which includes training in the recognition of controlled substance [sic], and its packaging, the aforementioned substance is alleged and believed to be SUBOXONE.
Deponent is further informed by informant that he [sic] is a New York City Correction Officer and that all inmates confined in the above location and in any other facility on Riker's Island are handed a copy of the New York City Department of Correction Inmate Rule Book upon admittance into said correctional facility. Deponent is further informed by informant that defendant signed the inmate rule book which in pertinent part states, inmates must not make, possess, sell or exchange any amount of heroin, cocaine, LSD, marijuana, pills, or any controlled substance, and drug paraphernalia is also prohibited .
Facial Sufficiency
To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15 [2]) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL § 100.15 [3]). More specifically, an information must provide "reasonable cause to believe that the defendant committed the offense" and must contain "nonhearsay allegations . . . [that] establish, if true, every element of the offense charged and the defendant's commission thereof" (People v Henderson, 92 NY2d 677, 679 [1999]); See CPL § 100.40 [1]).
The Court of Appeals has stated that CPL § 100.40 (1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" (People v Jones, 9 NY3d 259, 261 [2007]). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, "nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial" (People v Kalin, 12 NY3d 225, 230 [2009]). Rather, what is required is that the factual allegations in the 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" (Id. at 230 [internal citations and quotations omitted]). Ultimately, the information "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).
Criminal Possession of a Controlled Substance in the Seventh Degree
Penal Law § 220.03 provides that, "[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 ."
The accusatory instrument establishes that Defendant possessed a controlled substance. Deponent alleges that Informant recovered two orange strips from Defendant. Based on Informant's training and experience, she believed the strips were Suboxone. Suboxone is a pharmaceutical drug that contains Buprenorphine and Naloxone. Buprenorphine, in any quantity, is classified as a schedule III controlled substance (Public Health Law § 3306). An attached laboratory report confirms the presence of Buprenorphine on one of the strips recovered from Defendant. Possess is defined as "physical possession or otherwise to exercise dominion or control over tangible property" (Penal Law § 10.00 [8]). Defendant actually possessed a controlled substance because he was wearing the identification card on the inside of which the Buprenorphine strip was found.
Defendant argues that Informant's training and experience in recognizing controlled substances may not be the sole basis for showing that the orange strips contained Suboxone (Affirmation at p. 5). The People have filed a supporting laboratory report corroborating the presence of Buprenorphine on one of the orange strips. The identification of Buprenorphine is grounded not only in Informant's training and knowledge, but also a verified, controlled substance analysis report. Thus, Defendant's argument is without merit.
An essential element of this offense is a defendant's knowledge concerning the nature of the possessed substance (People v Reisman, 29 NY2d 278, 285 [1971]). Knowledge of a substance's nature may be inferred by the possession of said substance on one's person (Id.; See also People v Camacho, 47 AD2d 527, 527 [2d Dept 1975]). Here, the orange strip containing Buprenorphine was located on the inside of Defendant's identification card. At the time of discovery, Defendant was wearing his identification card. Defendant's physical possession of the strip is enough to support an inference that he knew the orange strip contained Buprenorphine. It is particularly informative that Defendant kept the orange strips on the inside of his identification card, out of plain view. It is a reasonable inference that Defendant did so because he knew that one of the strips contained a controlled substance, and he wanted to conceal it. Additionally, Defendant unlawfully possessed a controlled substance because his possession of the Buprenorphine strip constituted a violation of Promoting Prison Contraband in the Second Degree, as discussed below.
The information is facially sufficient as to the charge of Criminal Possession of a Controlled Substance in the Seventh Degree. The factual allegations provide reasonable cause to believe that Defendant committed the offense by establishing every required element.
Promoting Prison Contraband in the Second Degree
Penal Law § 205.20 (2) provides that, "[a] person is guilty of promoting prison contraband in the second degree when being a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any contraband." Contraband is "[a]ny article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order" (Penal Law § 205.00 [3]).
The accusatory instrument and its supporting documents establish that Defendant knowingly possessed contraband. According to Informant, the New York City Department of Correction issues an Inmate Rule Book to all inmates. She further alleges that the Rule Book contains a provision prohibiting inmates from possessing "any amount of heroin, cocaine, LSD, marijuana, pills, or any controlled substance" (Emphasis added) (Complaint at p. 1). Defendant received and signed a copy of the Inmate Rule Book. The strip, containing Buprenorphine, was discovered on the inside of Defendant's identification card. As previously discussed, Defendant's physical possession supports the inference that he knew the nature of the contraband as well.
The factual allegations also show Defendant was confined in a detention facility. The incident took place at the Anna M. Kross Center. The Anna M. Kross Center is one of several correctional facilities located at Riker's Island. Defendant's signed receipt of the inmate Rule Book infers that he was an inmate of a correctional facility. Therefore, the factual allegations establish that Defendant was confined in a detention facility.
The information is facially sufficient as to the charge of Promoting Prison Contraband in the Second Degree. The factual allegations provide reasonable cause to believe that Defendant committed the offense by establishing every required element.
Mapp/Dunaway
Defendant's request for a Mapp/Dunaway hearing is granted.
Sandoval/Ventimiglia
Defendant's request for a Sandoval/Ventimiglia hearing is referred to the trial judge.
Reservation of Right to Make Further Motions
Defendant's application for extension of time to file additional motions or to renew is denied subject to CPL § 255.20 (3) for further leave upon good cause shown. However, based on multiple adjournments for defense motions that spanned one hundred and eighty-five days, this court cannot envision a scenario where Defendant would have good cause to file additional motions.
For the foregoing reasons, Defendant's motion to dismiss for facial insufficiency is denied.
This constitutes the Decision and Order of the court.
Dated: June 10, 2015
Bronx, New York
____________________
Mary V. Rosado, J.C.C.