People v Smalls

[*1] People v Smalls 2012 NY Slip Op 51518(U) Decided on July 31, 2012 Supreme Court, Bronx County Livote, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2012
Supreme Court, Bronx County

The People of the State of New York

against

Sheila Smalls, Defendant



71208C-2010

Leonard Livote, J.

The defendant moves to reargue and renew the decision of the Court dated November 14, 2011.

In the previous decision, the defendant moved to dismiss the accusatory instrument pursuant to CPL §§ 170.30 and 170.35, on the grounds that accusatory instrument lacked supporting affidavits and lab tests. The reargument portion of the motion is made pursuant to CPLR § 2221 and argues that the Court overlooked or misapprehended matters of fact or law.

With respect to the supporting affidavits, the original decision denied the motion on the grounds that the supporting affidavits were contained in the court file. Defendant acknowledges receipt of supporting depositions, but argues that they are insufficient. "A supporting deposition is a verified written statement based on personal knowledge, containing "factual allegations of an evidentiary character" supplementing and tending to support the charges. (CPL 100.20.) The phrase "factual allegations of an evidentiary character" means nonconclusory descriptions of what the deponent personally observed, heard or experienced. (See, People v Dumas, 68 NY2d 729.) Consequently, any document offered as a supporting deposition must either refer to the facts in the accusatory instrument or must recite factual allegations which substantially mirror those set forth in the accusatory instrument. In other words, if a document offered as a supporting deposition does not refer to the accusatory instrument, it must contain the same facts as the factual portion of the accusatory instrument. Such documents must clearly: identify the defendant; state the date, time and place of the occurrence; and contain every element of each crime charged in the complaint. Further, such documents must indicate that the allegations made are based on the personal knowledge of the subscriber and that the subscriber has read the allegations contained in the document and verifies that they are true. If all of these components are contained in the document and the document is verified by a manner prescribed in CPL 100.30 (1), then the document may serve as a supporting deposition to the accusatory instrument even if the signed document precedes [*2]the drafting of the accusatory instrument"

(People v. Stridiron, 175 Misc 2d 16, 17 -18 [1997]).

The defendant argues that the supporting depositions are devoid of facts. However, the supporting depositions refer to the accusatory instrument. Accordingly factual allegations are unnecessary. The defendant also argues that the supporting depositions are inadequate because they do not contain the docket number of the complaint to which they refer. The supporting affidavits do, however, contain the defendant's name, arrest number and indicate that complaint they are referring to is the one attached to their depositions. This is sufficient to establish that they are referring to the correct complaint.

The defendant's next argument is that the complaint does not establish that the substance recovered was marijuana because the complaint does not identify the informant who concluded it was marijuana and that the informant's training and experience is, by itself, insufficient to establish that the substance is marijuana. With respect to the first point, a non-tortured reading of the complaint indicates that Correction Officer Davies was the informant who identified the marijuana. Furthermore, the complaint does not rely solely on Officer Davies training. The complaint also refers to the packaging, the distinctive odor and the fact that the defendant passed the package to an inmate who placed it in his mouth. This is sufficient to establish reasonable cause to believe that the substance was marijuana.

Defendant also argues that her position is supported by People v. Glover, (32 Misc 3d 1246(A)[Nassau County Dist. Ct 2011]). 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 ( Penal Law § 205.20[1] ). 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" (Penal Law § 205.00[3] ). The Glover Court ruled that the information was facially insufficient because it failed to allege that the supposed contraband, tobacco, was prohibited by a statute, rule, regulation or order.

In the instant case, the relevant portion of the complaint states "Deponent is further informed by informant that he is a correction officer and that visitors are not allowed to bring any items into the visitor's area of said correctional facility and if they do all items are considered contraband." However, attesting that something is "not allowed" is not the equivalent of alleging that something is prohibited by "statute, rule, regulation or order." Therefore, the complaint is facially insufficient because it fails to allege that either tobacco or marijuana are contraband within the meaning of the statute.

The defendant also moves to dismiss pursuant to CPL § 30.30. Because the highest charge in the original complaint was a class A misdemeanor, the People are required to be ready within 90 days, notwithstanding that the only remaining count is a violation (People v. Cooper, 98 NY2d 541 [2002]). In this case the criminal action was commenced when the defendant was arraigned on November 14, 2010 The People served a statement of readiness 36 days later on December 20, 2010. This is within the 90 days allowed by the statute and, therefore, the motion is denied.

Accordingly, the defendant's motion to renew and reargue is granted to the extent that count 1, Promoting Prison Contraband in the Second Degree, is dismissed for facial [*3]insufficiency. The defendant's motion to dismiss pursuant to CPL § 30.30 is denied.

This constitutes the Decision and Order of the Court.

A.J.S.C.