People v. Finch

• Decision Date: 31 March 2008
• Docket Number: NA 17718/07.
• Citation: 854 N.Y.S.2d 885,2008 NY Slip Op 28124,19 Misc.3d 840
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. WILLIAM J. FINCH, Defendant.
• Court: New York District Court

19 Misc.3d 840

854 N.Y.S.2d 885

2008 NY Slip Op 28124

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. WILLIAM J. FINCH, Defendant.

NA 17718/07.

District Court of Nassau County, First District.

March 31, 2008.

Janis A. Parazzelli, Floral Park, for defendant.

Kathleen M. Rice, District Attorney, Mineola, for plaintiff.

OPINION OF THE COURT

SUSAN T. KLUEWER, J.

Defendant's single motion, made by notice dated October 15, 2007 bearing two docket numbers, for an order dismissing the accusatory instruments as facially insufficient, suppressing evidence on account of an unlawful search or seizure, granting him Sandoval relief, and authorizing the making of further motions is granted to the extent that the accusatory instrument filed under this docket is dismissed as facially defective. The People's separate but simultaneously submitted motion, made by notice dated November 2, 2007, for an order consolidating this action with People v Finch (docket No. 17719/07), and defendant's cross motion, made by cross notice dated December 12, 2007, for an order dismissing the accusatory instruments pursuant to CPLR 3126, or, alternatively, precluding the People from offering evidence at trial, are denied by separate order issued simultaneously herewith under docket number 17719/07.

Defendant is accused, by long form information filed under this docket, of criminal possession of marijuana in the fifth degree, the elements of which, insofar as is here pertinent, are knowingly possessing marijuana in a public place as defined in Penal Law § 240.00, and that the marijuana is open to public view (see Penal Law § 221.10 [1]). By the factual part (see CPL 100.15 [3]) of the information, the complainant (see CPL 100.15 [1]), Police Officer Alejandro C. Perez, attests that, on July 19, 2007, at 1:10 A.M., he observed defendant in possession of a zip-lock type bag "containing a greenish-brown vegetable-like substance believed to be marijuana ... inside of a 2000 Mercury color black with New York registration 495011A. Your deponent did observe the above-listed offense while the Defendant was in a public place open to public view." The place of the occurrence is specified as "NB Middle Neck Rd" in Great Neck, New York. According to a supporting deposition now annexed to the information, the substance evidently retrieved from defendant's car is marijuana with a weight of 1.41 grams. Defendant is also charged, by two simplified traffic informations filed under docket number 11719/07, with unreasonable speed and driving without a license (see Vehicle and Traffic Law § 1180 [a]; § 509 [1]) on account of the same incident that gives rise to the charge under this docket. The place of the occurrence is thus specified as "N/B Middle Neck Rd," Great Neck, New York, and the car defendant is claimed to have been driving is the same 2000 black Mercury that allegedly contained the marijuana. At arraignment the People served and filed a CPL 710.30 notice that bears the docket number of each action advising that they intend to use at trial a statement they claim defendant made to law enforcement personnel at the scene, date and time of the incident underlying both actions to the effect that "I only have one bag of marijuana, I don't think there's any more."

In support of that branch of his single motion which is for dismissal, defendant urges that "[a]ll charges" are facially insufficient, but he proceeds as if all charges are made by way of information. Insofar as he seeks dismissal of the instrument filed under this docket, defendant complains that the officer's conclusion that he possessed the marijuana in a public place and in public view is insufficient to support the charge that he criminally possessed marijuana. Insofar as he seeks dismissal of the "traffic violations" filed under docket number 17719/07, he asserts that the failure to specify the speed at which he was driving and the failure to specify the "permitted" speed render the speeding charge insufficient, and that, because, according to him, there was no probable cause to stop his car, the unlicensed operation charged must be dismissed. He addresses his request for Sandoval relief, and, insofar as he directly addresses his request for suppression, he posits only that "contraband" was taken from him in violation of his right to be protected against illegal searches and seizures, and that information gathered from him about the status of his license, including a vaguely alluded-to statement about it, is the product of an "illegal stop."

The People in opposition assert, first, that defendant has failed to come forward with sufficient allegations of fact to warrant even a hearing on his application to suppress evidence, and they note that, in any event, they are unaware of and have served no notice regarding the statement about defendant's license that he implies he made. Insofar as defendant seeks dismissal of the accusatory instrument filed under this docket, they assert, at least tacitly, that Middle Neck Road is a public place, and that so too is the interior of a car traveling on it. They also go outside the four corners of the information to assert that Officer Perez "observed marijuana in plain view on the center of the console." Insofar as defendant seeks dismissal of the simplified traffic informations, they note that, to be sufficient, these accusatory instruments need only be substantially in the form prescribed by the commissioner of motor vehicles, and assert that those filed under docket number 11719/07 are. They urge that whether the stop of defendant's car was lawful is irrelevant on the issue of whether the simplified traffic informations are sufficient, and assert that, since defendant is charged with violating Vehicle and Traffic Law § 1180 (a), there is no need to designate either the speed at which it is claimed he was driving, or to specify the "permitted" speed. They posit that defendant's request for Sandoval relief is premature, and oppose defendant's unaddressed request for leave to make further motions.

Defendant serves a reply by which he addresses, and disputes, the People's assertion that the inside of his car is a public place. In the process, he specially notes that he, not the marijuana, is what Officer Perez claims he observed "in a public place and open to public view."

A simplified traffic information is a peculiar form of accusatory instrument that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information (see CPL 100.10 [2] [a]; People v Green, 192 Misc 2d 296 [Nassau Dist Ct 2002]; People v Quarles, 168 Misc 2d 638 [Rochester City Ct 1996, Byrnes, J.]). Prosecutions by simplified traffic information are governed by somewhat different standards than those applicable to prosecutions by long form information, the most notable being that pleading requirements are far less factually demanding (see People v Nuccio, 78 NY2d 102 [1991]; People v Baron, 107 Misc 2d 59 [App Term, 2d Dept 1980]; People v Green, supra; People v Quarles, supra). As the People note, the requirements for facial sufficiency of a simplified traffic information are merely that the accusatory instrument be in brief, simplified form in accordance with the directives of the commissioner of motor vehicles (see CPL 100.10 [2] [a]; 100.40 [2]), and, where a supporting deposition has been provided, that the supporting document set forth verified allegations of fact providing reasonable cause to believe that the defendant committed the offense charged (CPL 100.25). Supersedure is not available in a prosecution premised on a simplified traffic information (see People v Green, supra). In contrast, supersedure is readily available—without court leave—in a prosecution premised on, e.g., a long form information (see CPL 100.50; People v Thomas, 4 NY3d 143 [2005]). And it is well settled that, in order to be sufficient, a long form information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, nonhearsay allegations supporting every element of that offense, and the defendant's commission thereof (see CPL 100.15, 100.40 [1]). Concrete, nonhearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element (see People v Henderson, 92 NY2d 677 [1999]; People v Li, 192 Misc 2d 380 [Nassau Dist Ct 2002]), but conclusory statements, unsupported by "facts," are inadequate (cf. People v Dumas, 68 NY2d 729 [1986]; see also Matter of Jahron S., 79 NY2d 632 [1992]). The information thus must demonstrate the existence of a prima facie case (People v Henderson, 92 NY2d 677 [1999]), but the prima facie case requirement "is not the same as the burden of proof beyond a reasonable doubt" (id. at 680). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v Casey, 95 NY2d 354 [2000]; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v Voelker, 172 Misc 2d 564 [Crim Ct, Kings County 1997, Morgenstern, J.]; cf. CPL 100.40 [1]), and separate documents must be read separately (see People v Grabinski, 189 Misc 2d 307 [App Term, 2d Dept 2001]). A court need not, however, dismiss a long form information, and may allow the People time to formally cure, if they demonstrate both an intention, and an ability, to do so (see People v Casey, 95 NY2d 354 [2000]; see also People v Clinkscales, 3 Misc 3d 333 [Nassau Dist Ct 2004]; People v Cobb, 2 Misc 3d 237 [Crim Ct, Queens County 2003, Zayas, J.]; People v Romano, 188 Misc 2d 368 [Crim Ct, Queens County 2001, Modica, J.]).

Given the spare standards applicable to simplified traffic informations, and since there is no indication that he demanded a supporting deposition...