People v Rosario (Angel)

[*1] People v Rosario (Angel) 2014 NY Slip Op 51482(U) Decided on October 10, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570717/12

The People of the State of New York, Respondent,

against

Angel Rosario, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Alexander M. Tisch, J.), rendered June 19. 2012, convicting him, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Alexander M. Tisch, J.), reversed, on the law, accusatory instrument dismissed and fine remitted.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 518 [2014] NY Slip Op 04038 [2014]). Even when viewed under the more liberal standard, the accusatory instrument was jurisdictionally defective since it failed to allege "facts of an evidentiary character" (CPL 100.15[3]) demonstrating "reasonable cause" to believe (CPL 100.40[4][b]) that defendant was guilty of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). The police allegations that the single pill recovered from defendant was Alprazolam, a prohibited controlled substance, does not meet the reasonable cause requirement, since the arresting officer offered no description of the identifying characteristics of the pill or its packaging, if any, and "presented [nothing] more in the accusatory instrument than [a conclusory statement] that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs" (People v Kalin, 12 NY3d 225, 231 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 10, 2014