Opinion
No. 2013–616 Q CR.
04-07-2017
The PEOPLE of the State of New York, Respondent, v. Oscar VARGAS, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gia Morris, J.), rendered February 21, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with possession of burglar's tools ( Penal Law § 140.35 ) and criminal possession of stolen property in the fifth degree ( Penal Law § 165.40 ). The accusatory instrument alleged that a police officer had responded to a radio run regarding a male pulling on car door handles. The officer observed defendant walking on Booth Street and 63rd Avenue, in Queens County, and recovered car keys from defendant's jacket pocket and a flashlight from his back pack. When the officer pressed the alarm button on the car keys, a car alarm from a 2012 Nissan Moreno, which was located across the street from where defendant was standing, was activated. The officer felt the hood of the Nissan, which was still warm despite the fact that it was below freezing outside. The accusatory instrument further alleged that the officer had been informed by Isaac Zano that he had parked the Nissan on January 23, 2013, at approximately 10:15 p.m., on Yellowstone Boulevard and 63rd Drive but that, on January 24, 2013, at approximately 1:00 a.m., Isaac Zano had observed that the vehicle was missing. Finally, the accusatory instrument alleged that the officer had been informed by Michael Zano, Isaac's father, that he is the legal custodian of the Nissan and that defendant did not have permission or authority to take, use, remove, or otherwise exercise control over "the above mentioned property."
Defendant moved to dismiss the accusatory instrument on the ground of facial insufficiency, contending that, with regard to the count charging him with criminal possession of stolen property in the fifth degree, it was unclear whether he was being charged with criminally possessing the vehicle or the keys to the vehicle. Before the motion was decided, defendant waived prosecution by information and pleaded guilty to criminal possession of stolen property in the fifth degree in satisfaction of the entire accusatory instrument. On appeal, defendant contends that the accusatory instrument was facially insufficient as to the count to which he pleaded guilty.
As defendant's argument concerning the alleged facial insufficiency of the accusatory instrument raises a jurisdictional issue, it is not forfeited upon his plea of guilty (see People v. Kalin, 12 NY3d 225, 229 [2009] ; People v. Konieczny, 2 NY3d 569, 573 [2004] ). Since defendant, through his counsel, expressly waived his right to be prosecuted by information as part of the plea agreement, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 524 [2014] ). A misdemeanor complaint 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] ) and provides reasonable cause to believe that the defendant committed the crime charged (see CPL 100.40[4][b] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). So long as the factual allegations of an accusatory instrument provide an accused with 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 (see People v. Dreyden, 15 NY3d 100, 103 [2010] ; Kalin, 12 NY3d at 231–232 ; Konieczny, 2 NY3d at 576 ; People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
Pursuant to Penal Law § 165.40, "[a] person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof." The gravamen of the crime is possession of stolen property with knowledge of its stolen character (see People Nowakowski, 39 A.D.2d 621 [1972] ; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 165.40, at 245). Accordingly, the defendant must have been aware that he possessed the property in issue and that it was stolen property. Here, the instrument sufficiently alleged facts of an evidentiary character supporting or tending to support the count of criminal possession of stolen property in the fifth degree and provided reasonable cause to believe that defendant had committed this crime since it established that defendant possessed the property in issue and that it was stolen property.
To the extent that defendant's contention on appeal—that it is unclear from the accusatory instrument whether he was being charged with criminally possessing the vehicle or the keys to the vehicle—is viewed as an argument that the count of the accusatory instrument charging criminal possession of stolen property in the fifth degree was duplicitous (see People v. Alonzo, 16 NY3d 267, 269 [2011), as the defect, if any, would not constitute a jurisdictional defect, defendant forfeited review of this issue by his guilty plea (see People v. Shand, 105 AD3d 777 [2013] ; People v. Vega, 268 A.D.2d 686 [2000] ; People v. Gerber, 182 A.D.2d 252 [1992] ).
Accordingly, the judgment of conviction is affirmed.