People v Telfair

[*1] People v Telfair 2012 NY Slip Op 50527(U) Decided on March 22, 2012 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Calvin Telfair, Defendant.



2011KN033977



Appearances:

For the People, Charles J. Hynes, District Attorney, Kings County, by Charlotte Owens, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Esq., Legal Aid Society by Leah Martin, Esq.

John H. Wilson, J.

Defendant is charged with one count each of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), and Resisting Arrest (PL Sec. 205.30), both Class A misdemeanors.

By motion dated December 2, 2011, Defendant seeks dismissal of the Criminal Court complaint as facially insufficient, and based upon the facial insufficiency of the People's allegations, dismissal of the entire complaint pursuant to CPL Sec. 30.30(1)(b).

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated February 28, 2012. For the reasons stated below, the motion to dismiss is denied in its entirety.

FACTUAL STATEMENT

Pursuant to the Criminal Court Complaint, on or about April 30, 2011 at approximately 7:55 P M at Livonia Avenue and Chester Street, Brooklyn, NY, Police Officer Matthew Burczyk allegedly observed Defendant throwing a quantity of crack cocaine to the ground. Further, when [*2]stopped by the arresting officer, Defendant did resist arrest by "flailing (his) arms, struggling with informant, refusing to be handcuffed." See, Criminal Court Complaint dated May 1, 2011.

In the Criminal Court Complaint, it is alleged that Officer Burczyk "has had professional training as a police officer in the identification of crack cocaine," and that based upon that training, "in informant's opinion, the substance in this case is crack cocaine." See, Criminal Court Complaint dated May 1, 2011.

At arraignment, the People filed and served a supporting deposition, signed by the arresting officer. The complaint was then deemed an information, over the objection the Defendant. See, Defendant's motion dated December 2, 2011, p 2 para 5.

A laboratory analysis was filed and served on the Court and Defendant, with a Statement of Readiness, on June 29, 2011.

ARGUMENTS OF THE PARTIES

Defendant asserts that the charge brought under CPL Sec. 220.03 is facially insufficient since the "officer must explain...how he or she formed the belief that the defendant was in possession of a controlled substance with reference to his experience as well as his training." See Memorandum of Law attached to Defendant's motion dated December 2, 2011, p 7 (emphasis in original). Here, the Criminal Court complaint only references the arresting officer's training and not his experience.

Defendant also asserts that the charge brought under CPL Sec. 205.30 is insufficient. See Memorandum of Law attached to Defendant's motion dated December 2, 2011, p 9.

Defendant also states that the People's failure to have a facially sufficient complaint leads to dismissal of the information before the Court, since "a prosecutor cannot validly and effectually declare readiness for trial...without a facially sufficient complaint."See Memorandum of Law attached to See, Defendant's motion dated December 2, 2011, p 10.

The People assert that they have properly plead both charges on the docket, and that their time to prosecute this matter under CPL Sec. 30.30 has not expired.

LEGAL ANALYSIS

(A) Facial Sufficiency

Under CPL Sec. 100.15, every accusatory instrument is required to contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has [*3]committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986). "Accusatory instruments are to be accorded a fair and not overly restrictive or technical reading' and will be upheld so long as they serve the fundamental purposes of providing the accused notice sufficient to prepare a defense' and in a form sufficiently detailed' to prevent a subsequent retrial for the same offense." See, People v. Prevete, 10 Misc 3d 78, 79, 809 NYS2d 777 (App Term, 9th and 10th Dists, 2005) (Citations omitted).

Applying these principles to the instant matter, the factual allegations contained in the information before this Court are facially sufficient.

(B) PL Sec. 220.03

Under PL Sec. 220.03, "a person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance." A defendant's knowledge may be shown circumstantially by that defendant's conduct. See, People v. Shelton, 136 Misc 2d 655, 519 NYS2d 102 (1987). Knowing conduct can include the officer's observation of the defendant throwing the drugs away. See, People v. Burke, 25 AD2d 691, 268 NYS2d 163 (3d Dept, 1966).

Here Defendant is alleged to have been observed by Officer Burczyk to have thrown the crack cocaine to the ground, where the officer recovered the substance. See, Criminal Court complaint dated May 1, 2011. These allegations are sufficient to support the charge.

Defendant asserts that pursuant to People v. Dryden, 15 NY3d 100, 905 NYS2d 542 (2010), the People are required to assert that the officer has both experience and training in the identification of controlled substances. However, Defendant's reading of Dryden is incorrect.

In Dryden, the Court of Appeals upheld the Dumas standard, and found that allegations of an officer's training and experience in the identification of gravity knives were necessary before a complaint alleging possession of a gravity knife in violation of PL Sec. 265.01 would be deemed [*4]sufficient. 15 NY3d at 104. However, the decision in Dryden was based upon a finding that "a conclusory statement that an object recovered from the defendant was a gravity knife does not alone meet the reasonable cause requirement" of CPL Sec. 100.40(4)(b). 15 NY3d at 104. There is nothing in the Dryden decision, nor in Dumas, to support a belief that a recitation of the officer's training and experience is the only language that may be employed to satisfy sufficiency.

In People v. Hawkins, 1 Misc 3d 905(A), 781 NYS2d 627 (Crim Ct, NY Cty, 2003), the Court found sufficient allegations regarding the officer's ability "to open (the knife) through centrifugal force or gravity." The Hawkins Court found that such allegations would "establish an evidentiary basis for the deponent officer to conclude that the knife recovered...was a gravity knife." Further, in People v. Mathis, 32 Misc 3d 1205(A) (Crim Ct, Richmond Cty, 2011), the Court stated that it "is not convinced that Dryden...establishes an additional requirement that every accusatory instrument alleging possession of contraband must contain a recitation of the arresting officer's prior training and experience...where there are also accompanying allegations of a nonconclusory nature."

The sufficiency requirements imposed by Dumas were cogently discussed in People v. Santos, 17 Misc 3d 520, 841 NYS2d 852 (Crim Ct, NY Cty, 2007). There, in a prosecution for possession of a forged instrument, the Court noted as follows;

"it is true that allegations concerning an officer's training and experience have been deemed necessary for facial sufficiency...However, Dumas does not stand for the proposition that accusatory instruments are facially sufficient only if the factual allegations include an arresting officer's relevant training and experience. Rather, the Court simply held that facts of an evidentiary character are required, which facts...could have been, as the (Dumas) Court noted, an an allegation that the defendant represented the substance as being marijuana (or) any additional facts." 17 Misc 3d at 524 (emphasis in original), citing Dumas, 68 NY2d at 731.

Thus, "in order to correctly identify (a controlled substance) and to sufficiently allege its criminal possession, professional training OR prior experience are necessary." Santos, 17 Misc 3d at 525 (emphasis added).

This Court agrees with, and adopts the reasoning of the Hawkins, Mathis, and Santos Courts, and rejects a reading of Dryden which would require allegations regarding a police officer's training and experience to be asserted in an accusatory instrument before said instrument will be found sufficient.

Here, the officer based his identification of the controlled substance he recovered on his "professional training in the identification of crack cocaine...with the common methods of packaging crack cocaine." The officer asserts that the plastic bag he recovered "is a commonly used method of packaging crack cocaine," and based upon that training, in his opinion, the substance recovered is crack cocaine. See, Criminal Court complaint dated May 1, 2011. This language, coupled with the positive Laboratory Report served on the Defendant with the People's [*5]Statement of Readiness dated June 28, 2011, provides "facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged." Dumas, 68 NY2d at 731, citing CPL Sec. 100.15(3) and 100.40(4)(b).

Thus, there is no facial insufficiency in the Possession of a Controlled Substance charge.

( C) PL Sec. 205.30

Under CPL Sec. 205. 30, "a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer...from effecting an authorized arrest of himself." "Mere flight has been held to constitute the separate charge of resisting arrest, where the arrest is based on probable cause." See, People v. Lopez, 8 Misc 3d 873, 876, 797 NYS2d 893 (Crim Ct, Kings Cty, 2005)(citations omitted). See, also People v. Bell, 265 AD2d 813, 814, 696 NYS2d 610 (4th Dept, 1999), lv to app den 94 NY2d 916, 708 NYS2d 355 (2000) (evidence that defendant fled on foot when uniformed officer yelled "freeze" was legally sufficient to support conviction for Resisting Arrest.)

In the Criminal Court complaint, the People allege that while Officer Burczyk "placed defendant under arrest," Defendant "did resist arrest by flailing (his) arms; struggling with informant, refusing to be handcuffed." This allegation is sufficient by itself to sustain the charge of Resisting Arrest. See, People v. Yarborough, 19 Misc 3d 520, 526, 852 NYS2d 751 (S Ct, Bronx Cty, 2008) (Information sufficient which alleged that defendant "flailed his hands and twisted his body" in effort to avoid being handcuffed.)

Thus, there is no facial deficiency in the Resisting Arrest charge.

Therefore, Defendant's motion to dismiss for facial insufficiency is denied.

(D) CPL Sec. 30.30

Defendant asserts that if the People's complaint is facially insufficient, dismissal under CPL Sec. 30.30 is required, since "a prosecutor cannot validly and effectually declare readiness for trial...without a facially sufficient complaint." See Memorandum of Law attached to Defendant's motion dated December 2, 2011, p 10.

Since the information before the Court is facially sufficient, the motion to dismiss on this ground is moot. However, even if we were to reach this issue, this Court can find no authority to support the invocation of CPL Sec. 30.30 under these circumstances.

As noted above, at the arraignment of this matter, a supporting deposition signed by the arresting officer was filed with the Court and served on defense counsel. The arraignment court then accepted the People's statement of readiness, over the objection of the Defendant. [*6]

In any event, even if the complaint were facially insufficient, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989). See, also, People v. Camacho, 185 Misc 2d 31, 36, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000) ("People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect)...(a)ny period of time beyond such reasonable period of time is chargeable to the People pursuant to CPL Sec. 30.30.")

Here, even if the complaint had been facially insufficient at the arraignment, the People could have been given the opportunity to supercede the complaint, and provide the required allegations.

Therefore, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.

All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkMarch 22, 2012

_______________________________Hon. John H. Wilson, JCC