People v Pierre (Anthony)

[*1] People v Pierre (Anthony) 2012 NY Slip Op 51808(U) Decided on September 13, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2009-1927 K CR.

The People of the State of New York, Respondent,

against

Anthony Pierre, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William Miller, J.), rendered July 16, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fourth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to criminal possession of marihuana in the fourth degree (Penal Law § 221.15) in full satisfaction of the charges set forth in the information. On this appeal, defendant contends that the information is jurisdictionally defective.

An information, together with any supporting deposition accompanying or filed in connection therewith (CPL 100.20), must allege, among other things, facts of an evidentiary nature establishing, if true, every element of the offense charged and defendant's commission thereof (CPL 100.15 [3]; 100.40 [1]; see People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Jones, 9 NY3d 259, 261 [2007]). The failure to comply with these requirements is a nonwaivable jurisdictional defect (see People v Alejandro, 70 NY2d 133 [1987]). While the factual allegations "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), they must suffice to "give an accused notice sufficient to prepare a defense and . . . [be] adequately detailed to prevent a defendant from being tried twice [*2]for the same offense" (id.).

The information alleges, among other things, that defendant was present in a room where marihuana, contained in 70 ziplock bags, was found on a couch, and that another individual was observed handing a third individual a ziplock bag containing marihuana in exchange for a sum of United States currency. These allegations, "given a fair and not overly restrictive or technical reading" (id.), were sufficient for pleading purposes to establish, if true, every element of the offense charged and that defendant had committed the offense charged (see People v Kalin, 12 NY3d at 228-229). Moreover, the allegations provided defendant with sufficient notice to prepare a defense, and were adequately detailed to prevent defendant from being tried twice for the same offense (id. at 230; People v Casey, 95 NY2d at 360). Contrary to defendant's contention, we find that the factual allegations contained in the information support an inference that defendant was in constructive possession of the marihuana (see People v Dinardo, 94 AD3d 626 [2012] [inference that a person found in a hotel room constructively possessed contraband]; cf. Penal Law § 220.25 [2]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: September 13, 2012