People v Diaz (Julio)

[*1] People v Diaz (Julio) 2017 NY Slip Op 50175(U) Decided on February 10, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Gonzalez, JJ.
570041/16

The People of the State of New York, Respondent,

against

Julio Diaz, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Abena Darkeh, J.), rendered December 22, 2015, convicting him, upon his plea of guilty, of criminal possession of marijuana in the fifth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Abena Darkeh, J.) rendered December 22, 2015, reversed, on the law, accusatory instrument dismissed, and fine and surcharge, if paid, remitted.

The accusatory instrument was jurisdictionally defective as to the criminal possession of marijuana in the fifth degree charge (see Penal Law §§ 221.10 [1]), since the allegation that defendant possessed marijuana "across from [a specified address]" is, without more, insufficient to satisfy the "public place" element of the charged crime (see Penal Law § 240.00[1]). The People's pleading "could have more precisely pleaded the public nature of defendant's location by alleging that he was standing on a sidewalk or in a park, when the officer saw him holding ... marijuana" (People v Afilal, 26 NY3d 1050, 1052 [2015]).

Since the remaining count of the accusatory instrument is a violation, there would be little penological purpose to remitting the case for further proceedings (see People v Walters, 49 Misc 3d 134[A], 2015 NY Slip Op 51463[U] [App Term 2d, 11th and 13th Jud. Dists. 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 10, 2017