People v. Thiam

Citation34 N.Y.3d 1040,139 N.E.3d 366,115 N.Y.S.3d 745 (Mem)
Decision Date29 October 2019
Docket NumberNo. 74,74
Parties The PEOPLE of the State of New York, v. Mouhamed THIAM, Respondent.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Term should be affirmed.

Even if the accusatory instrument properly sets out a lower-grade offense, a defendant's challenge to a conviction based on the jurisdictional deficiency of a higher-grade crime of a multi-count complaint is not waived by the defendant's guilty plea. The Appellate Term properly reversed the judgment of conviction and sentence on the ground "that it was jurisdictionally defective as to the crime of which defendant was actually convicted" ( People v. Hightower , 18 N.Y.3d 249, 254, 938 N.Y.S.2d 500, 961 N.E.2d 1111 [2011] ).

Chief Judge DiFIORE (concurring).

The issue presented by this appeal is whether a local court has the authority to accept a guilty plea to a jurisdictionally defective top count of a multi-count misdemeanor accusatory instrument wherein counts of lesser grade offenses are sufficiently pleaded. I would hold that it does not.

I.

On June 24, 2016, defendant was charged by a three-count "Misdemeanor" accusatory instrument with criminal possession of a controlled substance in the seventh degree (an A misdemeanor), criminal possession of marijuana in the fifth degree (a B misdemeanor) and unlawful possession of marijuana (a violation). In the accusatory instrument, the arresting officer alleged, based on his personal knowledge, that "at about 3:30 P.M., at the south west corner of Broadway and West 29[th] Street in the County and State of New York, the defendant knowingly and unlawfully possessed a controlled substance; [and] the defendant knowingly and unlawfully possessed marijuana in a public place and such was burning or open to public view." In support of the marijuana counts, the officer alleged that he knew the substance was marijuana based on his training and experience – as well as the odor, the packaging, and a field test. In support of the criminal possession of a controlled substance count, the officer alleged he recovered eight pills from the right front pocket of defendant's pants and that he recognized the pills as oxycodone based on his professional training and prior experience in making drug arrests.

At defendant's arraignment in criminal court, defense counsel stated that he thought the accusatory instrument was facially deficient because there were insufficient facts alleging that the marijuana crime occurred in a public place and an insufficient basis for the officer's conclusion that the pills he seized were oxycodone. Defense counsel, nonetheless, did not move to dismiss the accusatory instrument or any count therein pursuant to CPL 170.30 or CPL 170.35. Rather, counsel asked the court to consider a sentence of time served. The court then inquired, despite the allegation that defendant was at the southwest corner of Broadway and West 29th Street, whether the People were going to move to amend the complaint to state that the specified location was a public sidewalk (see CPL 170.35[1] ). They responded that they could not amend the factual portion of the complaint without the verification of the deponent – i.e., the arresting officer. After the court indicated its willingness to impose a sentence of time served, defendant waived his right to prosecution by information and pleaded guilty to the top count of the accusatory instrument – the A misdemeanor of criminal possession of a controlled substance in the seventh degree – and the sentence of time served was imposed.

On appeal, defendant sought dismissal of the accusatory instrument on the basis that it was jurisdictionally defective due to insufficient factual allegations in violation of CPL 100.40 despite his failure to seek dismissal in the court of first instance. The Appellate Term reversed, holding that the misdemeanor complaint was jurisdictionally defective because the arresting officer's allegation that he believed the pills in defendant's possession were oxycodone was conclusory and insufficient to establish reasonable cause to believe that defendant was guilty of criminal possession of a controlled substance in the seventh degree ( 59 Misc. 3d 126(A), 2018 N.Y. Slip Op. 50339[U], 2018 WL 1371548 [App. Term, 1st Dept. 2018] ). The court, rather than remanding the case to the local court for further proceedings on the valid counts of the accusatory instrument, dismissed the entire instrument, as a matter of discretion in the interest of justice, observing that, since defendant had completed his sentence, there would be no penological purpose served by such a remand.

A Judge of this Court granted the People leave to appeal ( 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ).

II.

A local court accusatory instrument consists of two parts: an accusatory part containing the legal allegations of the offenses charged – concededly sufficient in this case – and a factual part that is the focus of this appeal ( CPL 100.40 ; 100.15). To pass muster as a legally sufficient accusatory instrument, the sworn factual allegations in the instrument combined with supporting depositions must "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument" ( CPL 100.40[4][b] ). The allegations in the factual portion must be in substantial compliance with the requirements of CPL 100.15, in that the allegations must provide "facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.40[1], [4] ; 100.15[3] ). "[T]he test for facial sufficiency ‘is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy’ " ( People v. Aragon , 28 N.Y.3d 125, 128, 42 N.Y.S.3d 646, 65 N.E.3d 675 [2016], quoting People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ).1

A misdemeanor accusatory instrument that fails to state a crime or fails to recite each element of the offense is jurisdictionally defective and a guilty plea does not waive the right to challenge the accusatory instrument on this ground for the first time on direct appeal (see People v. Case , 42 N.Y.2d 98, 100, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ; Dreyden , 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 ). However, a defendant who elects to plead guilty forfeits " ‘the right to appellate review of any nonjurisdictional defects in the proceedings’ " ( People v. Konieczny , 2 N.Y.3d 569, 572, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004], quoting People v. Fernandez , 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ). Since a voluntary and knowing guilty plea generally "removes the issue of factual guilt from a case," issues that do not impact the jurisdiction of the court or "impinge on rights of constitutional dimension" do not survive the entry of the judgment ( People v. Taylor , 65 N.Y.2d 1, 5–6, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ; see People v. Callahan , 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). Notably, in the felony context, a defendant's guilty plea waives any argument as to the sufficiency of the evidence presented to the grand jury (see People v. Dunbar , 53 N.Y.2d 868, 871, 440 N.Y.S.2d 613, 423 N.E.2d 36 [1981] ). Further, an indictment is facially jurisdictionally defective only if it fails to "effectively charge the defendant with the commission of a particular crime" – i.e., if the acts alleged do not constitute an offense or if the indictment fails to allege a material element of the crime ( People v. Iannone , 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).

Where a local court accusatory instrument containing factual allegations of every element of the crime contains only conclusory factual allegations of an item of contraband, such as an illegal drug or weapon, we have held that the conclusory description of the contraband is a jurisdictional defect (see People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ; Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). Specifically, the conclusory allegations are considered insufficient to satisfy "the requirement for factual allegations of an evidentiary character" ( 68 N.Y.2d at 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 ).

Here, defendant waived prosecution by information, and our review is limited to reviewing the sufficiency of the misdemeanor complaint under the reasonable cause standard (see Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).2 In People v. Dreyden , although we observed that "[t]he distinction between jurisdictional and nonjurisdictional defects ‘is between defects implicating the integrity of the process ... and less fundamental flaws, such as evidentiary or technical matters,’ " we held that the arresting officer's conclusory allegations that the weapon in defendant's possession was a gravity knife was a "violation of the ‘reasonable cause’ requirement amount[ing] to a jurisdictional defect" ( 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526, quoting People v. Hansen , 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). On the other hand, in Aragon , we held that the officer's observation of metal knuckles – an object whose character was evident on its face – did not require the officer's allegation that professional skill or expertise supported the conclusion ( 28 N.Y.3d at 129–130, 42 N.Y.S.3d 646, 65 N.E.3d 675 ).

On this appeal, the People do not challenge the Appellate Term's conclusion that the arresting officer's allegation, based on his professional training and experience as a police officer, of a reasonable belief that the eight pills recovered from defendant's right front pants pocket were oxycodone, was facially insufficient. Clearly, where the defendant has waived prosecution by information (and therefore has...

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