Opinion
No. 2008–235NCR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. James TOMASSI, Appellant.
Opinion
Appeal from judgments of the District Court of Nassau County, First District (Christopher G. Quinn, J.), rendered December 21, 2007. The judgments convicted defendant, upon his pleas of guilty of various offenses, under eight docket numbers, including attempted criminal possession of a weapon in the fourth degree and leaving the scene of an incident with personal injury.
ORDERED that so much of the appeal as is from the judgments of conviction under District Court docket Nos.2006NA007219, 2006NA019118, 2007NA021326, 2007NA02106, 2007NA03605, and 2007NA014350 and from the judgments convicting defendant of facilitating aggravated unlicensed operation of a motor vehicle in the third degree and operating a vehicle without a seatbelt, respectively, under District Court docket No. 2006NA007472 is dismissed as abandoned; and it is further,
ORDERED that the judgment convicting defendant of attempted criminal possession of a weapon in the fourth degree is reversed, on the law, defendant's plea of guilty to that offense vacated, and the accusatory instrument charging defendant with that offense is dismissed; and it is further,
ORDERED that the judgment convicting defendant of leaving the scene of an incident with personal injury is affirmed.
In 2007, defendant was charged, under 11 different docket numbers, with committing multiple offenses, including criminal possession of a weapon in the fourth degree (Penal Law § 265.01) under District Court docket No. 2007NA026503 and leaving the scene of an incident with personal injury (Vehicle and Traffic Law § 6002 ) under District Court docket No. 2006NA007472, on various dates between February 17, 2006 and October 25, 2007. Defendant pleaded guilty to attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01) under docket No. 2007NA026503 and, among other charges, leaving the scene of an incident with personal injury under docket No. 2006NA007472. Defendant also entered guilty pleas under six other District Court docket numbers (2006NA007219, 2006NA019118, 2007NA021326, 2007NA02106, 2007NA03605, and 2007NA014350), and judgments of conviction were entered. Defendant appealed all of the judgments of conviction under all eight docket numbers, and defendant's prior counsel filed an Anders brief (Anders v. California, 386 U.S. 738 1967 ). This court held the appeal in abeyance upon a finding that the Anders brief was inadequate, and new counsel was assigned to prosecute the appeal (35 Misc.3d 143[A], 2012 N.Y. Slip Op 50940[U] ).
Defendant now argues that the misdemeanor complaint charging him with criminal possession of a weapon in the fourth degree was facially insufficient, and that the plea allocution for leaving the scene of an incident with personal injury was insufficient. Since defendant raises no issues with respect to any of the other judgments of conviction in his brief, so much of the appeal as is from those other judgments of conviction is dismissed as abandoned (see People v. Rodriguez, 14 AD3d 719 2005 ).
Given that defendant's claim regarding the misdemeanor complaint charging defendant with criminal possession of a weapon in the fourth degree is jurisdictional in nature, it is not precluded by defendant's waiver of his right to appeal or his guilty plea (see People v. Oliveri, 49 AD3d 1208 2008 ). A misdemeanor complaint must “set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v. Dumay, 23 NY3d 518, 522 2014; see CPL 100.404 ), and provide “the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy' “ (People v. Dumay, 23 NY3d at 524, quoting People v. Dreyden, 15 NY3d 100, 103 2010 ). “Reasonable cause to believe that a person has committed an offense' 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 70.102 ).
The factual part of the misdemeanor complaint herein alleges that, on the date and time at issue, defendant “did possess a gravity knife,” and describes the circumstances under which the knife was recovered. In People v. Dreyden (15 NY3d 100), the Court of Appeals held that the misdemeanor complaint charging defendant therein with criminal possession of a weapon in the fourth degree was jurisdictionally defective because “insofar as it described the arresting officer's conclusion that defendant had a gravity knife, [it] failed to give any support or explanation whatsoever for the officer's belief” (id. at 103). Thus, the misdemeanor complaint charging defendant with criminal possession of a weapon in the fourth degree in this case is similarly defective under the Dreyden standard. The People do not disagree, but, rather, argue that People v. Dreyden, which was decided in 2010, should not be retroactively applied.
In determining whether People v. Dreyden should be retroactively applied, the threshold question is whether a new rule has truly been advanced, as “retroactivity should not be in question when a court's ruling merely applies previously established principles in a new factual setting” (People v. Favor, 82 N.Y.2d 254, 262–263 1993 ). Since the rule in People v. Dreyden is merely an application of the principles set forth in People v. Dumas (68 N.Y.2d 729 1986 ), it is not a new rule, and it applies in this case. Therefore, we find that the accusatory instrument charging defendant with criminal possession of a weapon in the fourth degree is jurisdictionally defective. Accordingly, the judgment convicting defendant of attempted criminal possession of a weapon in the fourth degree is reversed, the plea of guilty to that offense is vacated, and the accusatory instrument charging that offense is dismissed.
Defendant's second argument on appeal is that his plea allocution to leaving the scene of an incident with personal injury was factually insufficient. However, by failing to move in the District Court below either to withdraw his guilty plea (see CPL 220.603 ) or to vacate the judgment of conviction (see CPL 440.10), defendant failed to preserve the issue (see People v. Lopez, 71 N.Y.2d 662, 665–666 1988; People v. Stevens, 43 AD3d 1088 2007 ), and we decline to review it in the interest of justice (see People v. Sands, 45 AD3d 414 2007 ). “The narrow exception to the preservation rule explained in People v. Lopez (71 N.Y.2d at 665–666) does not apply since defendant's factual allocution does not cast significant doubt on his guilt” (People v. Sands, 45 AD3d at 415) and “there is no suggestion in the record that the plea was improvident or baseless” (People v. Duff, 158 A.D.2d 711, 711 1990 ). Accordingly, the judgment convicting defendant of leaving the scene of an incident with personal injury is affirmed.
IANNACCI, J.P., TOLBERT and CONNOLLY, JJ., concur.