People v Liranzo (Richard)

[*1] People v Liranzo (Richard) 2015 NY Slip Op 50138(U) Decided on February 20, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570590/2013

The People of the State of New York, Respondent,

against

Richard Liranzo, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J. at plea and sentence), rendered June 1, 2013, convicting him, upon a plea of guilty, of criminal possession of marihuana in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Ann E. Scherzer, J. at plea and sentence), rendered June 1, 2013, reversed, on the law, accusatory instrument dismissed and surcharge, if paid, remitted.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 518 [2014]). Even when viewed under the more liberal standard, the accusatory instrument was jurisdictionally defective since it failed to allege "facts of an evidentiary character" (CPL 100.15[3]) demonstrating "reasonable cause" to believe (CPL 100.40[4][b]) that defendant was guilty of criminal possession of marihuana in the fifth degree (see Penal Law § 221.10[1]), the offense to which he ultimately pleaded guilty. Absent from the People's pleading were allegations sufficient to satisfy the "open to public view" element of the charged offense. In this connection, the factual portion of the accusatory instrument stated that the arresting police officer observed defendant sitting in the passenger seat of a car parked on a public street at approximately 10:45 at night, and that the officer further observed "an open black bag directly next to the defendant's feet containing approximately six clear plastic bags containing marijuana."

The quoted facts, even when taken together with all reasonable inferences which can be drawn from those facts (see People v Jackson, 18 NY2d 738, 747 [2012]), do not give rise to the required inference that the packaged marihuana recovered from within the "open black bag" situated on the car floor "would have been visible to a passerby or motorist" from outside the car (id. at 748; cf. People v Murray, 11 Misc 3d 134[A], 2006 NY Slip Op 50467[U][App Term, 1st Dept 2006]), lv denied 7 NY3d 760 [2006] [allegations that defendant was observed inside a car "passing a large ziplock bag of marihuana to another individual, who placed the bag between the [*2]console and front passenger seat," held sufficient for pleading purposes to satisfy the "open to public view" element of Penal Law § 221.10]). It need be emphasized that nowhere in the accusatory instrument does the deponent police officer state the underlying facts giving rise to his encounter with defendant [FN1] or, even more critical to the resolution of this appeal, state that he (the officer) was able to and did in fact see the packaged marihuana from outside the vehicle (cf. People v Jackson, 18 NY3d at 741, 747-748).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur

Decision Date: February 20, 2015

Footnotes

Footnote 1:In evaluating the facial sufficiency of the ~~accusatory instrument, we may not consider any of the ~~putative, unpleaded background facts that emerged ~~during the plea colloquy, and instead must rely ~~exclusively, as we have, on the evidentiary allegations ~~contained within the four corners of the accusatory ~~instrument itself (see People v Thomas, 4 NY3d 143, 146 ~~[2005]).