People v. Afilal

• Decision Date: 24 November 2015
• Docket Number: No. 170,170
• Citation: 43 N.E.3d 762,2015 N.Y. Slip Op. 08616,26 N.Y.3d 1050,22 N.Y.S.3d 405
• Parties: The PEOPLE of the State of New York, Respondent, v. Abdelouahad AFILAL, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 1050
43 N.E.3d 762
22 N.Y.S.3d 405
2015 N.Y. Slip Op. 08616

The PEOPLE of the State of New York, Respondent
v.
Abdelouahad AFILAL, Appellant.

No. 170

Court of Appeals of New York.

Nov. 24, 2015.

Seymour W. James, Jr., The Legal Aid Society, New York City (Seth Steed of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Alan Gadlin and Hilary Hassler of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

43 N.E.3d 763

The order of the Appellate Term should be reversed and the accusatory instrument dismissed. Defendant was charged with and pleaded guilty to criminal possession of marihuana in the fifth degree (Penal Law § 221.10[1] ). On appeal he challenges the sufficiency of the accusatory instrument, claiming that it fails to allege sufficient facts to establish the “public place” element of section 221.10(1).

A person is guilty of criminal possession of marihuana in the fifth degree “when [such person] knowingly and unlawfully possesses ... marihuana in a public place ... and such marihuana is burning or open to public view” (Penal Law § 221.10[1] ). Public place means

“a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence” (Penal Law § 240.00[1] ).

“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] ). Defendant waived prosecution by information and, therefore, the sufficiency of the accusatory instrument is assessed under the standard applicable to a misdemeanor complaint. Under that standard, the

complaint must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15[3] ), and the factual allegations...