People v Collins (Diane)

[*1] People v Collins (Diane) 2009 NY Slip Op 50914(U) [23 Misc 3d 138(A)] Decided on May 11, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1238 K CR.

The People of the State of New York, Respondent,

against

Diane Collins, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Joseph E. Gubbay, J.), rendered June 20, 2007. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a controlled substance in the seventh degree.

Judgment of conviction affirmed.

Defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and received a sentence of a conditional discharge. Defendant contends on this appeal that the misdemeanor complaint was facially insufficient since its allegation that a glass pipe recovered from her hand contained crack cocaine residue was merely a conclusion based on the officer's opinion without any chemical testing.

The judgment of conviction is affirmed in accordance with the recent decision of the Court of Appeals in People v Kalin (___ NY3d ___, 2009 NY Slip Op 02446 [2009]). In Kalin, as in the case at bar, the defendant was convicted upon his guilty plea to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) without having been advised by the court of his right to be prosecuted by information. In Kalin, the Court of Appeals held that, under such circumstances, a guilty plea should result in a forfeiture of the right to challenge the sufficiency of the accusatory instrument by operation of law, so long as the instrument, whether intended to be a misdemeanor complaint or not, satisfied the jurisdictional requirements of an information, including that it sufficiently plead each element of the charged crime (People v Kalin, NY3d , 2009 NY Slip Op 02446). In Kalin, the Court observed that the statements of the complainant officer in the accusatory instrument were sufficient to satisfy the requirements of an information, where "the assertions 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 [*2]the substances, along with the presence of paraphernalia, supplied the basis on which he drew the conclusion that he had discovered heroin and marijuana" (id. at *4). In the case before us, the assertions of the officers in the accusatory instrument and supporting deposition were similar to those set forth in Kalin, and therefore are deemed to have satisfied the requirements of an information. In light of the foregoing and the entry by defendant of a guilty plea, the judgment of conviction is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 11, 2009