[*1] People v Glover 2011 NY Slip Op 51713(U) Decided on September 14, 2011 District Court Of Nassau County, First District Kluewer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.
People v Glover
Decided on September 14, 2011
District Court of Nassau County, First District
The People of the State of New York, Plaintiff(s)
Nydira Glover, Defendant(s)
Honorable Kathleen Rice, District Attorney
240 Old Country Road
Mineola, NY 11501
Joseph M. Terino, Esq.
PO Box 1185
Syosset, NY 11791
Susan T. Kluewer, J.
Defendant's motion for an order dismissing the accusatory instrument as facially defective, and on account of the People's failure to timely be ready for trial, is granted to the extent that the accusatory instrument is dismissed as facially defective (see CPL 170.30[a]).
Defendant is accused by superceding information of promoting prison contraband in the second degree, a class A misdemeanor (see Penal Law § 205.20). By factual part (see CPL 100.15) of the now-superseded information, the then-complainant (see CPL 100.15), Nassau County Police Officer Patrick O'Neil, attests on information and belief that, on February 22, 2010, Defendant, while visiting her boyfriend at the Nassau County Correctional Center, "did knowingly and unlawfully possess a clear plastic wrapped ball filled with a brownish substance believed to be tobacco, considered prison contraband," that she had the ball in her mouth during the visit, that "the aforementioned was recovered by Correction Officer Romaine," and that he (Officer O'Neill) responded to Nassau County Correctional Center and "recovered evidence from Correction Officer Volpicello." Officer O'Neil further attests that the sources of his information and belief are "the evidence involved," and the supporting depositions of Corrections Officers Romaine and Lagomarsino, both of which supporting depositions are annexed to the information. By one, "J. Romaine" attests that:
"[t]he Nassau County Sheriff's Department employs me as a Correction Officer at the Nassau County Correctional Center located at 100 Carman Avenue in East Meadow, NY. On Monday February 22nd I was assigned to the 0800-1600 hrs tour working my assigned post, which is the 832 building visiting area. At approximately 0905 hrs I was notified by my supervisor that a visitor now known to me as Nydira Glover DOB 12/2/1987 who was seated at chair number 5 passed contraband to inmate Terrence McBride DOB 7/25/1980. Nydira Glover was escorted out of the visiting room and into a holding area. Before I was going to pat search Nydira Glover, I asked her if she had anything on her I should know about. She stated no. I then asked her again if she had anything on her she took a clear plastic wrapped ball of a brownish leafy substance consistent to tobacco from her mouth and handed it to me. Nydira Glover stated it is tobacco. I placed the evidence in an evidence bag labeled E10-019 and turned it over to Investigator Volpicello shield No.818 who opened it up and it appears to be tobacco. I would like to add that there are amnesty boxes outside both visiting areas to dispose of any and all contraband before entering the visiting lobbies. There are also numerous signs posted throughout the grounds and visiting areas warning visitors that they are subject to search by trained canines and correction center personnel for illegal drugs and other contraband. There are signs stating [*2]that bringing contraband into the facility is a crime and you will be subject to criminal prosecution. I would like to add that in my 10 years as a Correction Officer this contraband was packaged in a manner that is consistent with what I see promoted at the Nassau County Correctional Center. I did not give Nydira Glover permission to introduce contraband into the correctional center and I want her arrested and criminally charged."
By the other "J. Lagomarsino" attests that:
"[t]he Nassau County Sheriff's Department employs me as a Correction Officer at the Nassau County Correctional Center located at 100 Carman Avenue East Meadow NY. On Monday February 22nd I was assigned the 0800-1600 hrs tour working my assigned post, with is the 832 building visiting area assigned to the video surveillance post. At approximately 0900 hrs I observed that a visitor now known to me at Nydira Glover DOB 12/2/1987 who was seated at chair number 5 passed contraband to inmate Terrence McBride DOB 7/25/1980. I turned the videotapes over to my supervisor, Sergeant Donahue shield #79. I would like to add that there are amnesty boxes outside both visiting areas to dispose of any and all contraband before entering the visiting lobbies. There are also numerous signs posted throughout the grounds and visiting areas warning visitors that they are subject to search by trained canines and correction center personnel for illegal drugs and other contraband. There are signs stating that bringing contraband into the facility is a crime and you will be subject to criminal prosecution. I would like to add that in my 15 years as a Correction Officer this contraband was packaged in manner that is consistent with what I see promoted at the Nassau County Correctional Center. I did not give Nydira Glover permission to introduce contraband into the correctional center and I want her arrested and criminally charged."
According to the notations on the court file, except for one 43-day adjournment from September 9, 2010 to October 22, 2010 that is marked as made at the People's request, all adjournments from arraignment until submission of this motion have been for motions, "VDFs," or at Defendant's request. On May 19, 2011, both sides announced ready for trial but no jury panels were available. I thus adjourned the case to May 23, 2011. On May 20, 2011, the People filed a superceding information. Although by this superseding document, Defendant remains accused of promoting prison contraband in the second degree, the complainant making this later accusation is Assistant District Attorney Lauren Kalaydjian. She attests, also on information and belief, that on February 22, 2010, Defendant, "while visiting an inmate at the Nassau County Correctional Center, did pass a small latex-wrapped ball to the inmate," that, after [*3]she was apprehended but before she was searched, Defendant "removed a clear plastic-wrapped ball, filled with a brownish leafy substance, believed to be tobacco, from her mouth," that "[c]ontraband is defined by the rules of the jail to be anything not authorized by the Nassau County Correctional Facility," and that Defendant "was not authorized to bring these items into the Nassau County Correctional Facility." The sources of her information and belief are, again, the supporting depositions of Corrections Officers Romaine and Lagomarsino. But while Corrections Officer Romaine's supporting deposition is a copy of that which is annexed to the now-superseded accusatory instrument, Corrections Officer Lagomarsino's is new. By this one, Corrections Officer Lagomarsino attests that:
"[t]he Nassau County Sheriff's Department employs me as a correction officer at the Nassau County Correctional Center located at 100 Carman Avenue in East Meadow, NY. I have worked at the Nassau County Correctional Center for fifteen years and I am familiar with the rules and regulations of the jail. It is against the rules of the jail for any visitor to bring contraband into the jail or to pass anything to a prisoner. There are amnesty boxes outside both visiting areas to dispose of any and all contraband before entering the visiting lobbies. There are also numerous signs posted throughout the grounds and visiting areas, warning visitors that they may not bring contraband into the jail and that they are subject to search for contraband at all times. Contraband is any item not authorized by the jail.
"On Monday, February 22, 2010, I was assigned to the 0800-1600 hours tour. My assigned post was the 832 building visiting area. At our about 9:00 am, I observed the defendant, Nydira Glover, pass an item to an inmate. This item was a small ball approximately ½ inch in size and appeared to be a substance wrapped in part of a latex glove. The defendant was not authorized to bring this item into the visiting area of the jail, nor was she authorized to pass it to an inmate. Because this item was not authorized, it is contraband."
On May 23, 2011 at 9:30 a.m., Defendant made (see CPLR 2211) the present motion. Later that morning, I arraigned her on the superseding information, and dismissed the superseded accusatory instrument pursuant to CPL 100.50.
In support of that prong of her motion which is for dismissal of the accusatory instrument as facially defective, Defendant complains, in effect, that the accusatory instrument does not provide her with notice of the statute, rule, regulation or order denominating what she is alleged to have possessed as contraband, that without notice of what is contraband, there is no proper allegation that she acted knowingly, and that there is no proper attestation that the brown leafy substance is actually tobacco. Evidently advised by telephone of [*4]the People's intention to file a superseding information, she posits that that intention constitutes an admission that the original accusatory instrument is insufficient. Insofar as she seeks dismissal because of the People's claimed failure to be ready for trial within the statutorily specified time period, and citing People v. Colon (59 NY2d 921, 466 NYS2d 319  ), she asserts, in effect, that because the accusatory instrument is insufficient, the People could not properly announce they were ready for trial, that the court, because of the People's assertions of readiness, simply "deemed" each of the adjournments to be at her request, and that, because the People wrongly announced they were ready, they thereby "forc[ed]" all adjournments to be at her request.
The People in opposition urge, in effect, that when determining the date by which they must be ready for trial, the facial sufficiency of the accusatory instrument and the concomitant validity of their statements of readiness are irrelevant where, as here, a defendant requests or consents to an adjournment, or other excludable activity, such as motion practice or discovery, is being conducted. Asserting that they are to be charged, at most, only with the 43-day adjournment that the file reflects was granted at their request, they also urge that, for Defendant to suggest that she would have asserted her own readiness only if the People stated they were not ready is to treat "speedy trial" issues as a game. Insofar as Defendant seeks dismissal of the accusatory instrument as facially defective, they assert the application is moot because the originally filed information — the one that Defendant moves against — has now been superseded. They also posit that, because, according to them, none of the claimed defects is "jurisdictional," Defendant's motion is untimely because not made within 45 days of her arraignment on the original accusatory instrument. Turning to the merits, they assert that they filed the superseding information to "clarify" that Defendant had two packages of tobacco, one of which she passed to the inmate, the other of which she pulled from her mouth when questioned by Corrections Officer Romaine, and that her knowledge that what she had was contraband is demonstrated by the allegation that she hid the items in her mouth. Insofar as Defendant complains that the allegations about the authority for deeming what she possess contraband are insufficient, the People assert that Corrections Officers Romaine and Lagomarsino are experienced as corrections officers, that each "discusses" the rules of the Correctional Center in their supporting depositions, and that if not specifying the precise regulation is "a defect at all, it is a hearsay defect" that is waived because Defendant did not make this application within 45 days of her original arraignment. Citing People v. Kalin (12 NY3d 225, 878 NYS2d 653 ), the People make essentially the same "experience" argument regarding these corrections officers' descriptions of the substance each attests he (or she) "believes" is tobacco, and posit that, if this be a defect, it is a hearsay defect that Defendant has waived by not moving [*5]against the accusatory instrument earlier. They conclude their presentation with the assertion that "the People do not have to prove that the item smuggled in was tobacco, just that it was contraband, and the fact that it was contraband is evidence[d] by the manner in which [Defendant] smuggled it into jail and by the way it was packaged."
Defendant in reply again points to People v. Colon and asserts that, because the People answered ready for trial on a defective accusatory instrument, her actions of, e.g., requesting an adjournment are irrelevant. She again urges that the original accusatory instrument is jurisdictionally defective, and that it was not until the People filed the superseding information that she was put on notice "of the definition of contraband." Ironically, Defendant asserts that the superseding information "addresses the jurisdictional defects of the original accusatory instrument," but asserts that "their time to cure said jurisdictional defects has long since passed," thus requiring dismissal pursuant to CPL 30.30.
Turning first to the potentially dispositive claim that the People failed to fulfill their obligation to be ready for trial within the time fixed by statute — here 90 days from the action's commencement (see CPL 30.30[b]) — that claim is without merit. Although Defendant implies that all adjournments are the People's "fault," she does not dispute that those adjournments marked on the court file as granted at her request were actually granted at her request. Nor does she dispute that adjournments marked as granted because of motion practice, discovery, and other proceedings concerning her are in fact the reasons for those adjournments. And since delays occasioned by adjournments granted at a defendant's request or with the defendant's consent, and those due to motion practice, discovery and other proceedings concerning the defendant are, by statute, specifically excluded when calculating the time the People have exhausted (see CPL 30.30), she cannot be heard to complain that the People have failed to be ready for trial within the time dictated by statute. People v. Colon — which, in the context of on absent defendant, makes note of the People's obligation to file a trial-ready, facially sufficient information, and which has, in part, been legislatively overruled (see People v. Bolden, 81 NY2d 146, 597 NYS2d 270 ) — is not to the contrary. In fact, the Court of Appeals has repeatedly ruled that periods excludable pursuant to CPL 30.30(4) remain excluded when calculating the actual date by which the People must be ready, even if the accusatory instrument is defective (see, e.g.,People v. Meierdiercks, 68 NY2d 613, 505 NYS2d 51 ; People v. Worley, 66 NY2d 523, 498 NYS2d 2d 116 ). Moreover, I am aware of no authority, and Defendant cites none, for the tacit argument that an illusory announcement of readiness excuses a court from applying legislative mandates about what periods are excludable. Since the essentially undisputed markings on the court file demonstrate that the People have yet to exhaust the time within which they must be ready for trial (see People [*6]v. Berkowitz,50 NY2d 333, 428 NYS2d 927 ; see also People v. Quiles, 179 Misc 2d 59, 683 NYS2d 775 [Crim Ct, New York County, 1998, Billings, J.]), Defendant has failed to make even a prima facie showing that the accusatory instrument should be dismissed pursuant to CPL 30.30(1)(b) (see also CPL170.20[e]). But, as the Court of Appeals has also made clear, the People remain obligated to file, before trial commences, a facially sufficient accusatory instrument, in this case an information (see 100.10; People v. Colon, supra).
An information is sufficient if it provides reasonable cause to believe that the defendant committed the offense charged, and if it contains sworn, non-hearsay allegations supporting every element of that offense, and the defendant's commission thereof (see CPL 100.15, 100.40). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 ; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]), but conclusory statements, unsupported by "facts," are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 ). The information thus must demonstrate the existence of a prima facie case (People v Henderson, supra), but the prima facie case requirement "is not the same as the burden of proof beyond a reasonable doubt" (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, 95 NY2d 354, 717 NYS2d 88 ; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40).
A person is guilty of promoting prison contraband in the second degree when he or she knowingly and unlawfully introduces any contraband into a detention facility (see Penal Law § 205.20). Contraband is defined as "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order" (see Penal Law § 205.00). As set forth above, the People in effect posit, Alice-in-Wonderland fashion, that, because Penal Law § 205.00(3) provides that any "thing" can be contraband, and that, because, according to the current complainant, any "thing" that is not permitted is contraband, contraband is any "thing" they say it is, and that, therefore, they need not demonstrate in the pleadings — and, implicitly, that they need not prove at trial — either that a person confined in Nassau County Correctional Center is prohibited by rule from possessing or obtaining tobacco, or that the "thing" involved in the accusation they make against Defendant is tobacco. They are in error.
Because contraband within the meaning of Penal Law §205.20 is any [*7]"thing" a detainee is prohibited by statute, rule, regulation or order from obtaining or possessing (see Penal Law §205.00), examination of an official edict outside Penal Law §§ 205.00(3) and 205.20 is required in order to determine whether the "thing" mentioned in an accusatory instrument is identified as contraband (see People v. McDermott, 69 NY2d 889, 515 NYS2d 225 ). But the fact that Penal Law §§205.00(3) and 205.20 require that what Defendant is accused of introducing into the Nassau County Correctional Center be identified elsewhere does not mean, as the People appear to contend, that it need not be identified at all. Indeed, the Court of Appeals has made clear that the item a defendant is accused of introducing into a detention facility must be "identified as contraband by the official action described" (id. at 891, 515 NYS2d supra at 227). If that were not the case, not only would Defendant here be deprived of the notice of the acts she is accused of committing that the law requires, she would potentially be improperly subject to re-prosecution for the same offense (see People v. McDermott, supra), and perhaps exposed to conviction on a theory not alleged in the accusatory instrument (cf. People v. Burnett, 306 AD2d947, 760 NYS2d 800 [4th Dept. 2003]). I thus conclude that, in order to be sufficient, the non-hearsay factual allegations of the accusatory instrument must demonstrate prima facie that a person confined in the Nassau County Correctional Center is prohibited by properly promulgated rule or regulation from possessing or obtaining tobacco, and that the substance the People accuse Defendant of introducing into the Nassau County Correctional Center is tobacco. Since, as set out below, they have not done so, even by their superseding information, the accusatory instrument must be dismissed.
Tobacco is a substance that adults may lawfully possess. Since it is thus familiar to many, it is more likely that someone will have the knowledge and experience to competently attest that a substance is tobacco than where, for instance, a controlled substance is involved (see People v. Kalin, supra). Corrections Officers Romaine and Lagomarsino may possess the expertise necessary to identify tobacco, but they have not made demonstrations in their respective supporting depositions, either that they possess that expertise, or that they actually identified the substance as tobacco. Corrections Officer Romaine attests only that the brown leafy substance in the wrapped ball Defendant is alleged to have removed from her mouth is "consistent to" tobacco, and that, when an investigator opened up the ball, the substance "appear[ed] to be" tobacco. As for Corrections Officer Lagomarsino, his (or her) focus in the later supporting deposition is on the packaging of a ball Defendant is claimed to have actually passed to an inmate, his (or her) attestations are the evident rationale for the People's assertion that packaging, and the manner in which Defendant is claimed to have introduced "a substance" into the jail, are enough to establish a prima facie case, and the People's use of those attestations suggest that they are [*8]attempting, improperly, to accuse Defendant of committing the same crime twice in a one-count accusatory instrument (but cf. People v. Burnett, supra; see also People v. Nevins, 16 AD3d 1046, 791 NYS2d 771 [4th Dept. 2005]; People v. Clark, 6 AD3d 1066, 776 NYS2d 656 [4th Dept. 2004]). In any event, Corrections Officer Lagomarsino does not mention the term tobacco and does not pretend to identify what the "substance" he (or she) attests to having observed Defendant pass to a prisoner actually is. Defendant's admission to Corrections Officer Romaine that the substance she carried in her mouth is tobacco demonstrates the existence of reasonable cause to believe that that substance is tobacco (see People v. Kalin, supra), but it is not prima facie proof that it is (cf. People v. Clinkscales, 3 Misc 3d 333, 774 NYS2d 308 [Nassau Dist Ct,2004]). There is thus no prima facie demonstration that what Defendant is claimed to have had in her mouth (or what she is alleged to have passed to the prisoner) is tobacco. And while how the "substances" were packaged, and how it is claimed Defendant carried them into the jail, give rise to an inference that Defendant acted with the requisite mental culpability (id.; see also People v. McDermott, supra), that is only one of the elements of the crime she is accused of committing.
As noted above, in order to be contraband, the substance Defendant is accused of introducing into the jail — tobacco — must actually be, as required by statute, identified in some official edict as an item a prisoner is prohibited from obtaining or possessing (see Penal Law §S 205.00; People v. McDermott, supra). Even if the People had properly demonstrated that the substance involved here is tobacco, dismissal is required because none of the attestations in either accusatory instrument establishes that tobacco comes within the statutory definition of contraband: the allegations of the now-superseded accusatory instrument merely suggest that tobacco is "considered" contraband — the People do not specify by whom — and neither the current complainant — who does not attest that she has ever reviewed the "rules of the jail" — nor either of the corrections officer actually cites, quotes from, or otherwise directly refers to a particular rule specifying that a prisoner may not obtain or possess tobacco. Rather, the People depart from the statutory definition of what constitutes contraband and substitute their own. Instead of being contraband because it is on an official list of items that are prohibited, they assert tobacco is contraband because it is not on a list — compiled in some unspecified place or document — of things that are allowed. Apart from the fact that such an interpretation deprives the public of notice of what is "prohibited," I doubt the legislature intended, nor could they properly intend, such a delegation of authority (see McKinney's Statutes §§2, 3; People v. Motley, 69 NY2d 870, 514 NYS2d 715 ).
Turning to the People's contention that these defects are merely ones of hearsay which Defendant has waived, even if a failure to move against the accusatory instrument within 45 days of arraignment relegates a defendant to [*9]being tried without his or her consent on what is, in effect, a misdemeanor complaint (but see CPL 1.20,100.10; People v. Casey, supra; and see People v. Kalin, supra), their argument is without merit. The corrections officers' attestations are not defective because based on information provided by others; they are defective because they do not demonstrate that what Defendant is accused of introducing into the Nassau County Correctional is tobacco and because, to make their accusation, the People rely on a definition of contraband that is not statutorily authorized (see People v. Motley, supra). These failures to establish two elements of the crime charged are jurisdictional and are thus not waivable (see e.g., People v. Alejandro,70 NY2d 133, 517 NYS2d 927 ). Nor is Defendant's motion moot. Although it is directed at the now-superseded information, Defendant's objections, each of which the People have had opportunity to address, are as relevant to the currently pending information as they are to the information she challenged. And while Defendant may be satisfied that the People have by their superseding information addressed the jurisdictional defects, including putting her on notice "of the definition of contraband," I, as noted above, am not. Since it would be reversible error to allow this case to proceed to trial on the superseding information (cf. People v. Alejandro, supra; People v. Jackson, nor, 2011 NYSlipOp 55150U [AppTerm, 2d Dept. August 10, 2011]), I must dismiss it.