People v. Jackson

• Decision Date: 22 January 2010
• Citation: 897 N.Y.S.2d 584,27 Misc.3d 5
• Parties: The PEOPLE of the State of New York, Respondent, v. Samuel JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Term

897 N.Y.S.2d 584

27 Misc.3d 5

The PEOPLE of the State of New York, Respondent,

v.Samuel JACKSON, Appellant.

Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts.

Jan. 22, 2010.

Legal Aid Society, New York City (Steven Banks and Jonathan Garelick of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Victor Barall and David Korngold of counsel), for respondent.

Present: GOLIA, J.P., PESCE and WESTON, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander B. Jeong, J.), rendered February 9, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.

*6 ORDERED that the judgment of conviction is affirmed.

Defendant was charged, in an accusatory instrument not denominated either a misdemeanor complaint or an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10[1] ) and several other offenses. He pleaded guilty to criminal possession of marihuana in the fifth degree in satisfaction of the accusatory instrument. He now challenges the facial sufficiency of the count of the accusatory instrument charging him with that offense, arguing that it does not meet the facial sufficiency requirement of CPL 100.40(1)(c).

As defendant correctly contends, because he never waived the right to be prosecuted by information, the accusatory instrument must be measured against the standards for an information ( see People v. Kalin, 12 N.Y.3d 225, 227-228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ), including the standard set forth in CPL 100.40(1)(c). This subdivision provides that, in order for a count of an information to be facially sufficient, the information (and/or its supporting depositions*7 ) must set forth factual allegations that "establish, if true, every element of the offense charged ..." This requirement is jurisdictional ( see People v. Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381; People v. Casey, 95 N.Y.2d 354, 362, 717 N.Y.S.2d 88, 740 N.E.2d 233;People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71). Hence, defendant's claim did not require preservation ( see People v. Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381; People v. Casey, 95 N.Y.2d at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233; People v. Alejandro, 70 N.Y.2d at 135, 517 N.Y.S.2d 927, 511 N.E.2d 71), and the claim was not forfeited by defendant's pleading guilty ( see People v. Lucas, 11 N.Y.3d 218, 220, 868 N.Y.S.2d 570, 897 N.E.2d 1052; People v. Konieczny, 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626).

The instrument alleges, among other assertions, that, according to a named police officer, on or about February 7, 2008, at about 1:33 P.M., at Tillary Street and Prince Street in Kings County, defendant turned his vehicle without signaling; the police officer conducted a car stop; the officer smelled a strong odor of marihuana emanating from inside the vehicle; she observed defendant holding a quantity of marihuana, open to public view, in his hand; and she recovered the marihuana from defendant's hand.

Penal Law § 221.10(1) provides, in relevant part: "A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: 1. marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is ... open to public view ..." Penal Law § 240.00(1) defines a "public place" as "a place to which the public or a substantial group of persons has access, and includes, but is not limited to, high-ways ..." Defendant contends that the count charging him with criminal possession of marihuana in the fifth degree fails to provide factual allegations that "establish, if true" (CPL 100.40[1][c] ), that the marihuana was "in a public place" and "open to public view" within the meaning of Penal Law sections 221.10(1) and 240.00(1). In our opinion, defendant's contentions lack merit.

"[A]n accusatory instrument must be given a reasonable, not overly technical reading ..." ( People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626). When the accusatory instrument herein is given such a reading, the allegations thereof establish, if true, that the complainant police officer observed defendant holding marihuana in his hand while defendant was inside his car, and while his car was stopped (for the traffic infraction investigation) on a public street. These allegations establish, if true, that defendant possessed marihuana in a "public place" within the meaning of Penal Law § 240.00(1) ( see *8 People v. McNamara, 78 N.Y.2d 626, 633, 578 N.Y.S.2d...