People v Fofana (Sidy)

[*1] People v Fofana (Sidy) 2018 NY Slip Op 50214(U) Decided on February 16, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Cooper, JJ.
571082/15

The People of the State of New York, Respondent,

against

Sidy Fofana, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered October 15, 2015, convicting him, upon a plea of guilty, of unlawful possession of marijuana, and sentencing him to a fine of $75.

Per Curiam.

Judgment of conviction (Laurie Peterson, J.) rendered, October 15, 2015, affirmed.

The accusatory instrument charging criminal possession of marijuana in the fifth degree (see Penal Law § 221.10[1]) was not jurisdictionally defective. The deponent police officer's allegations that he observed the defendant "inside Tompkins Square Park, near the north west corner of Avenue B and East 8th Street," "holding one cigarette containing marijuana," and that the officer "took the cigarette ... from on top of a fence where [he] observed the defendant place it," were sufficient for pleading purposes to establish the public place element of the charged offense (see Penal Law § 240.00; People v Afilal, 26 NY3d 1050, 1052 [2015]) and that the marijuana was "open to public view" (Penal Law § 221.10; see People v Jackson, 18 NY3d 738 [2012]; Matter of Kawon W., 127 AD3d 668 [2015]).

We perceive no basis for reducing the fine. Although defendant claims that he is indigent, he never sought relief from the fine by way of a CPL 420.10(5) motion for resentencing (see People v Toledo, 101 AD3d 571 [2012], lv denied 21 NY3d 947 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 16, 2018