Opinion
42585628-8.
Decided February 24, 2006.
Defendant was issued three summonses on December 18, 2005. When Defendant failed to appear for arraignment, the People requested the court to issue an arrest warrant for her appearance pursuant to section 120.30 of the CPL. In deciding whether or not to issue the warrant, the court must determine whether the summonses in question are legally sufficient to proceed with prosecution. The offenses charged in the summonses will be analyzed seriatum.
Summons No. 42585628-8
On the first summons, Defendant is charged with violation of section 240.35(3) of the Penal law, which states:
A person is guilty of loitering when he . . . loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature.
In the portion of the summons in question the police officer wrote:
At T/P/O Deft. was in a known prostitution prone location and was observed by P.O. soliciting sexual favors.
This section of the Penal law was challenged on Constitutional grounds in People v. Uplinger, 58 NY2d 936, 460 N.Y.S. 2d 514 (1983), cert. granted 464 U.S. 812 (1983), motion den. 464 U.S. 1015 (1983), motion granted 464 U.S. 103 (1984), cert. denied 476 U.S. 242 (1984). In that case the court said that this section of the statute must be viewed as a companion statute to the consensual sodomy statute (Penal Law sec. 130.38) which criminalized acts of deviate sexual intercourse between consenting adults. Previously, in invalidating that sodomy law, the court held that the State may not constitutionally prohibit sexual behavior conducted in private between consenting adults. Therefore, the Uplinger court found that this subject section of the loitering statute suffers from the same deficiencies as did the consensual sodomy statute, and consequently cannot be upheld Constitutionally. Since the decision in Uplinger, no court has found section 240.35(3) of the Penal Law to be enforceable, see generally Loper and Kaye v. New York City Police Dept. et al., 785 F. Supp. 464 (S.D.NY 1992).
Based on the foregoing, the court must dismiss the summons based on section 240.35(3) of the Penal law as being Constitutionally unenforceable.
Summons No. 425854629-0
The second summons issued to Defendant is based on section 221.05 of the Penal Law, Unlawful Possession of Marihuana, which states:
A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.
On the summons, in describing the offense, the police officer wrote:
At T/P/O Deft was observed by P.O. knowingly in possession of 2 marijuana cigars and 1 ziplock bag of marijuana.
In order for an accusatory instrument to be facially sufficient it must allege facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged. Mere statements of a conclusory nature will not suffice. People v. Givens, 164 Misc 2d 463, 624 N.Y.S. 2d 790 (New York County 1995).
With respect to summonses for violations of the marihuana laws, the courts have consistently stated that complaints for the possession of marihuana are facially insufficient where they contain a conclusory statement that the defendant possessed marihuana but fail to support that statement with evidentiary facts showing the basis for the conclusion that the substance is actually marihuana. People v. Dumas, 68 NY2d 729, 506 N.Y.S. 2d 319 (1986).
The police officer may conduct a field test of the substance to support his or her conclusion as to its nature, People v. Escalera, 143 Misc 2d 779, 541 N.Y.S. 2d 707 (New York County 1989). But even without a field test, such facts stated in an accusatory instrument as the odor emanating from the subject substance, observation of the substance and statements by defendants have all been held to be sufficient to sustain a challenge to the facial sufficiency of a complaint. See People v. Morgan, 10 AD3d 369, 781 N.Y.S. 2d 652 (2nd Dept. 2004).
Further, even in the absence of specific facts, complaints have been held to be facially sufficient when a police officer merely states that a defendant possessed a substance which, because of his training and experience, the officer concluded was a controlled substance; there is no requirement that the accusatory instrument describe the officer's training and experience. People v. Paul, 133 Misc 2d 234, 506 N.Y.S. 2d 834 (New York County 1986).
In the instant case the summons contains not a single fact upon which the police officer could support his conclusion that the substance in question was marihuana. Therefore, this summons must be dismissed as being facially defective.
Summons No. 425854627-6
The last summons issued to Defendant is for disorderly conduct, a violation of section 240.20(5) of the Penal Law, which states:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . . he obstructs vehicular or pedestrian traffic.
The summons states that:
At T/P/O Deft. did knowingly and intentionally cause public alarm by obstructing pedestrian traffic on a public sidewalk.
To be facially sufficient, an information must contain allegations of every element of the offense charged and the defendant's commission thereof, which, for section 240.20 of the Penal Law, includes an allegation of intent to cause public alarm. People v. Tarka. 75 NY2d 996, 557 N.Y.S. 2d 266 (1990). In this respect, this portion of the summons is legally sufficient. However, the summons fails to give Defendant fair notice of any specifically described conduct said to be disorderly, and a complete absence of evidentiary facts is fatal. People v. Ocasio, 2002 NY Slip Op. 50071U, 2002 NY misc. Lexis 115 (1st Dept. 2002). No where does the summons indicate what acts Defendant is alleged to have committed that could obstruct pedestrian traffic. Therefore, the court finds this summons to be facially defective.
Based on the foregoing, the court dismisses all the above summonses issued against Defendant.