People v Palmer

[*1] People v Palmer 2009 NY Slip Op 51512(U) [24 Misc 3d 1218(A)] Decided on July 14, 2009 Criminal Court Of The City Of New York, New York County Koenderman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Darren Palmer, Defendant.



2009NY020705



For defendant:

Michael Berardino

Mangialardi & Berardino

111 North Central Avenue

Hartsdale, New York 10530

For People:

Daniel Poulos

Assistant District Attorney

New York County

One Hogan Place

New York, New York 10013

Elisa S. Koenderman, J.

The defendant, Darren Palmer, is charged with Criminal Possession of Marihuana in the Fourth Degree (Penal Law ["PL"] § 221.15). The defendant has moved in an omnibus motion for dismissal for facial insufficiency; suppression of physical evidence, or in the alternative, a Mapp hearing; suppression of statements, or in the alternative, a Huntley/Dunaway hearing; discovery and a bill of particulars, including disclosure of any agreements made with prosecution witnesses; preservation of Brady and Rosario material; disclosure of prior bad acts; and a pre-trial Sandavol hearing. The defendant's motion is decided as follows.

FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [*2][1987]).

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138,quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). Ultimately, "the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The criminal complaint alleges that on March 13, 2009, at about 10:05 p.m. at the northeast corner of Lenox Avenue and West 119th Street in New York County, Police Officer Joseph Rivera of the Manhattan North Impact Response Team recovered a substance having an aggregate weight of more than two ounces of marihuana from the backseat of the motor vehicle in which the defendant was the sole occupant. The complaint further states that Officer Rivera believed the substance to be of the kind and quantity alleged based upon "his professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, and observation of [its] packaging which is characteristic of this type of drug" and based upon a field test performed upon the substance which yielded a positive result for marihuana. The marihuana field test report filed with the criminal complaint indicates that 29 clear hard containers of alleged marihuana were seized as evidence pursuant to the arrest of the defendant and that a field test conducted by Sergeant Beatty upon the substance in one container yielded a positive result for marihuana [FN1].

The defendant argues that because the field test report does not state the weight of the substance in the tested container, a laboratory analysis report is necessary to establish that the aggregate weight of the substance containing marihuana was in excess of two ounces. Because no laboratory analysis report has been filed, the defendant claims that the information is facially insufficient and must be dismissed.

Under PL § 221.15, "a person is guilty of criminal possession of marihuana in the [*3]fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces."

In reviewing an information for facial sufficiency, the court is confined to the four corners of the accusatory instrument (see People v Thomas, 4 NY3d 143, 146 [2005]). The accusatory instrument consists of the complaint and any supporting depositions which accompany it (CPL § 100.40[1][b], [c]). The marihuana field test report filed with the complaint constitutes such a supporting deposition. Furthermore, a supporting deposition such as a field test report is "not limited to merely restating the facts as contained in the complaint but may contain additional facts to support the charges" (People v Modica, 187 Misc 2d 635, 636 [Crim Ct, Richmond County 2001]). Even if there are discrepancies, the statute does not require precise factual symmetry between the complaint and the supporting deposition as the statute provides that facts in the supporting deposition may be received to supplement the allegations contained in the complaint (id. at 637). Here, although the complaint simply describes the substance recovered from the backseat of the vehicle in which the defendant was the sole occupant as "having an aggregate weight of more than two ounces" of marihuana, the field test report indicates that 29 clear hard containers of alleged marihuana were seized as evidence pursuant to the defendant's arrest [FN2] . When taken together, the complaint and field test comprise a facially sufficient information.

First, although the field test report filed in this case confirms that the substance seized as evidence contained marihuana, the positive field test result is unnecessary to set forth a prima facie case of the defendant's possession of marihuana (see People v Kalin, 12 NY3d 225, 231 [2009]; see also People v Collins, 23 Misc 3d 138[A], 2009 NY Slip Op 50914[U] [App Term 2d and 11th Judicial Districts 2009]). Here, however, the field test report provides a description of the evidence seized, which supports Officer Rivera's conclusion that the substance is of the kind and weight alleged. This description of the evidence as "29 clear hard containers" of marihuana, coupled with the officer's opinion that the substance was marihuana based upon his "professional training as a police officer in the identification of drugs, his prior experience as a police officer in drug arrests, the odor emanating from the substance, and observation of the packaging which is characteristic of this type of drug" is sufficient (id.).

Moreover, the fact that the field test report does not indicate the weight of the substance in the container which yielded a positive result for marihuana does not render the information deficient. Officer Rivera's assertion that the substance was marihuana - based upon his training and experience and its appearance - obviates the need for a field test or laboratory analysis report. Likewise, Officer Rivera's conclusion that the substance containing marihuana had an aggregate weight of more than two ounces suffices to establish its weight because that assertion is similarly based upon [*4]Officer Rivera's training and experience and the substance's appearance (id.). Accepting Officer Rivera's statements as true, the allegations are adequate to inform the defendant not only as to the nature of the substance possessed but also as to its weight (id.). The accusatory instrument therefore sufficiently pleads the elements of the charged crime and is not jurisdictionally defective. While the People must still meet their burden of proof beyond a reasonable doubt at trial, their much lower burden at the pleading stage has been met. The defendant's motion to dismiss for facial insufficiency is therefore denied.

REMAINING MOTIONS

A Mapp hearing is ordered on defendant's motion to suppress physical evidence. A Huntley/Dunaway hearing is ordered on defendant's motion to suppress statement evidence. The People are directed to comply with their continuing obligation to disclose exculpatory material pursuant to Brady v Maryland, 373 US 83 (1963). The People are directed to provide discovery as required by CPL § 240.20 and bill of particulars as required by CPL §§ 200.95 and100.45(4). The People are directed to disclose the defendant's prior bad acts immediately prior to the commencement of jury selection pursuant to CPL § 240.43 and a Sandoval ruling is reserved to the trial court.

This constitutes the decision and order of the Court.

Dated:July 14, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: In Box 3(B), the marihuana field test report states that "29 clear hard containers including 1 in clear bag marked pos' were vouchered."

Footnote 2: The defendant does not dispute that the factual allegations provide reasonable cause to believe that the defendant, as sole occupant of the vehicle where the marihuana was found, exercised dominion and control over the marihuana and therefore constructively possessed it (cf, People v Gutierrez, 21 Misc 3d 1129[A], 2008 NY Slip Op 52275[U] [defendant seated in passenger seat of vehicle exercised dominion and control over marihuana found at his feet]).