People v. Parsons

• Decision Date: 16 October 2020
• Docket Number: 570207/19
• Citation: 69 Misc.3d 11,133 N.Y.S.3d 723
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerome PARSONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

69 Misc.3d 11

133 N.Y.S.3d 723

The PEOPLE of the State of New York, Respondent,

v.Jerome PARSONS, Defendant-Appellant.

570207/19

Supreme Court, Appellate Term, New York.

Decided on October 16, 2020

Center for Appellate Litigation (Shaina R. Watrous of counsel) for appellant.

PRESENT: Edmead, P.J., Cooper, Higgitt, JJ.

Higgitt, J. Judgment of conviction (Michael Gaffey, J.), rendered March 13, 2019, reversed, on the law, and the accusatory instrument is dismissed.

We are frequently asked to review the facial sufficiency of accusatory instruments charging defendants with criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03 ). Typically, we find that such accusatory instruments, be they informations or complaints, are facially sufficient. However, the information before us on defendant's appeal does not contain sufficient non-conclusory allegations establishing the basis for the police officer's belief that the substance seized from defendant was a controlled substance. Therefore, we reverse the judgment of conviction.

The information alleges that, at a specified time on the morning of March 12, 2019, at a specified location in Manhattan, a police officer "recovered synthetic marijuana ... from the defendant's right jacket pocket." The information further alleges that the officer "examined the recovered substance and has determined that it does in fact contain synthetic marijuana based on his professional training as a police officer in the identification of synthetic marijuana, his prior experience as a police officer making arrests involving synthetic marijuana, and his observation of the packaging which is characteristic of synthetic marijuana."

The information charged defendant with one count of criminal possession of a controlled substance in the seventh degree, and one count of possession of synthetic phenethylamines and synthetic cannabinoids (see 10 NYCRR 9.2 [renumbered to 9-1.2] ).

The day after his arrest, defendant pleaded guilty to violating the Penal Law § 220.03 count in satisfaction of the accusatory instrument, and sentence was imposed. Defendant did not waive prosecution by information.

Defendant appeals from the judgment of conviction resulting from his plea. Highlighting that he was prosecuted on an information (not a complaint), defendant contends that his plea should be vacated and the information dismissed because, among other reasons, the information failed to provide sufficient factual allegations regarding the officer's basis for concluding that the substance seized from defendant was synthetic marijuana. The People contend, in pertinent part, that the allegations in the information sufficiently described, for pleading purposes, the officer's reasons for concluding that the substance seized from defendant was synthetic marijuana.¹

There are two types of accusatory instruments a court can use to obtain jurisdiction over a defendant accused of a misdemeanor: an information or a complaint (see People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ). A defendant charged with a misdemeanor must be prosecuted by an information unless he or she waives the right to be prosecuted under such an instrument ( id. ).

A complaint must contain an accusatory section designating the specific offense or offenses with which the defendant is being charged (see CPL 100.15[2] ), and a factual section alleging "facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.15[3] ) that "provide reasonable cause to believe that the defendant committed the offense [or offenses] charged" ( CPL 100.40[b] ).

An information must contain the two elements possessed by a valid complaint, and the "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof" ( CPL 100.40[1][c] ). The "prima facie case" standard imposed by CPL 100.40(1)(c) contains two discrete components: that the allegations establish every element of the charged offense or offenses, and that the allegations be "non-hearsay" (see People v. Casey , 95 N.Y.2d 354, 362, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). Critically, the allegations cannot be conclusory (see People v. Jackson , 18 N.Y.3d at 741, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 ; see also People v. Middleton , 35 N.Y.3d 952, 954, 124 N.Y.S.3d 313, 147 N.E.3d 583 [2020] ). The prima facie case standard, which is necessary because of "the unique function that an information serves under the [CPL]," demands that the information contain factual allegations establishing a legally sufficient case against the defendant ( People v. Alejandro , 70 N.Y.2d 133, 137, 137-139, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ; see People v. Jones , 9 N.Y.3d 259, 262, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007] ). While the allegations in an information need not be of such character that they would withstand a motion to dismiss at trial or establish the defendant's guilt of the charged offense beyond a reasonable doubt, "an information must satisfy significantly more stringent facial sufficiency requirements than those applicable to a complaint" ( People v. Smalls , 26 N.Y.3d 1064, 1066-1067, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015] ). An information that does not satisfy the prima facie case requirement is jurisdictionally defective ( People v. Pearson , 78 A.D.3d 445, 445, 914 N.Y.S.2d 2 [1st Dept. 2010] ).

Two Court of Appeals decisions— People v. Kalin and People v. Smalls —set forth critical guidance for courts reviewing the facial sufficiency of informations charging defendants with violating Penal Law § 220.03.

In People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009), the information alleged that, on a specified date, at a specified time, at a specified location, the defendant knowingly and unlawfully possessed marijuana in that he was a passenger in a vehicle from which a police officer recovered a marijuana pipe containing a quantity of marijuana from the glove compartment of the vehicle, one plastic zip lock bag containing a quantity of marijuana, and nine plastic bags containing a quantity of heroin from the center console of the vehicle ( 17 Misc. 3d 131[A], 2007 N.Y. Slip. Op. 51998[U], 2007 WL 3012961, *1 [App. Term., 2d Dept., 2d & 11th Jud. Dists. 2007] ). The officer further alleged in the information that his conclusion that the substances recovered were heroin and marijuana was "based upon his experience as a police officer as well as training in the identification and packaging of controlled substances and mari[j]uana" ( id. ).

The Appellate Term, Second Department, reversed the defendant's conviction of violating Penal Law § 220.03 emanating from his guilty plea, finding that the information was jurisdictionally defective because it failed to satisfy the prima facie case requirement (see 12 N.Y.3d at 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

The Court of Appeals reversed the order of the Appellate Term, and reinstated the judgment of conviction. The Court of Appeals observed that "the factual allegations [in an information] must establish the basis of the arresting officer's belief that the substance seized was an illegal drug—for example, an officer may allege that the accused made a statement identifying the drug" ( id. at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). Notably, the Court found that "the assertions [in the information] were enough to inform defendant that the substances seized were heroin and marijuana—the officer had been trained to identify those drugs and their packaging, he had experience with narcotics as a law enforcement officer and his observations of the substances, along with the presence of drug paraphernalia, supplied the basis upon which he drew the conclusion that he had discovered heroin and marijuana" ( id. at 231, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

While eschewing any mandatory catechism, the Court found that an information charging a defendant with violating Penal Law § 220.03 is sufficient if it, among other things, states the officer's familiarity with and training regarding the identification of the drug, and provides some information as to why the officer concluded that the substance was a particular type of illegal drug ( id. at 231-232, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

In Smalls , the information charging the defendant with violating Penal Law § 220.03 alleged, among other things, that the defendant possessed a glass pipe containing a tar-like substance that, based on the officer's "training in the recognition of controlled substances and their packaging, ... [he] believed to be crack-cocaine residue" ( 116 A.D.3d 474, 474, 982 N.Y.S.2d 886 [2014] ). The defendant pleaded guilty to violating Penal Law § 220.03.

The Court of Appeals affirmed the order of the Appellate Division, First Department, that rejected defendant's facial-sufficiency challenge to the information. The Court of Appeals concluded that "the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe" ( 26 N.Y.3d at 1067, 23 N.Y.S.3d 134, 44 N.E.3d 209 ). The Smalls Court observed that "an information's description of the characteristics of a substance combined with its account of an officer's training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance" ( id. )

Since Kalin was decided, we have had occasion to pass on the sufficiency of numerous accusatory instruments charging defenda...