People v Schroeder (Robert)
Annotate this CaseDecided on May 9, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-2009. 2005-2010 and 2005-2011 RI CR
The People of the State of New York, Respondent,
against
Robert Schroeder, Appellant.
Appeals from judgments of the Criminal Court of the City of New York, Richmond County (Desmond Green, J.), rendered December 7, 2005. The judgments convicted defendant, upon his pleas of guilty, of criminal possession of a controlled substance in the seventh degree, criminal contempt in the second degree and menacing in the second degree.
Judgments of conviction of criminal possession of a controlled substance in the seventh degree and menacing in the second degree affirmed.
Judgment of conviction of criminal contempt in the second degree reversed on the law and matter remanded to the court below for all further proceedings consistent
herewith.
Defendant initially entered negotiated pleas of guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and menacing in the second degree (Penal Law § 120.14 [1]) upon condition that sentencing await successful completion of a Treatment Alternatives to Street Crime (TASC) program (see People v Avery, 85 NY2d 503 [1995]). At that time, the court advised defendant that in the event he failed to successfully complete the TASC program, the court would impose consecutive one-year sentences on each conviction. Defendant consented thereto. It is uncontroverted that defendant not only failed to complete the TASC program, but also violated other conditions imposed by the court. Subsequently, defendant entered into a negotiated plea to criminal contempt in the second degree (Penal Law § 215.30 [3]). In return for his plea on that charge, the court promised to impose a sentence of four months to run consecutively to concurrent one-year sentences on his two earlier convictions. At sentencing, the court noted that it could not honor its commitment due to [*2]defendant's refusal to be interviewed by Probation, and, without affording defendant an opportunity to withdraw his plea, sentenced him to consecutive one-year sentences on each of the three convictions.
On this appeal, defendant, in addition to challenging the propriety of the sentences, contends that the factual allegations set forth in the information charging criminal possession of a controlled substance in the seventh degree are legally insufficient in that they failed to establish defendant's possession of the controlled substance.
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirement of section 100.15 of the Criminal Procedure Law, and when the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that defendant committed the offense charged in the accusatory part of the information and the nonhearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the precise words or phrases which most clearly express the thought be used in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v Zambounis, 251 NY 94 [1929]; People v Shea, 68 Misc 2d 271 [1971]). The failure to comply with this requirement is a nonwaivable defect (People v Alejandro, 70 NY2d 133 [1987]) with the exception of the nonhearsay requirement which is deemed waived absent a pre-trial motion (see People v Casey, 95 NY2d 354 [2000]) or upon a plea of guilty (People v Pittman, 100 NY2d 114, 122 [2003]).
A person is guilty of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) when he knowingly and unlawfully possesses a controlled substance. The police officer alleged in the information herein that defendant, on the date, time and place set forth in the information, possessed a controlled substance by being inside a vehicle in which crack cocaine was located. The presence of a controlled substance in an automobile is presumptive evidence of a knowing possession thereof by each and every person in the automobile at the time such controlled substance was found (see Penal Law § 220.25 [1]). Thus, all the People needed to allege and prove at trial was that defendant was in the car and that illegal drugs were found in the vehicle (see People v Green, 133 AD2d 170 [1989], lv denied 70 NY2d 875 [1987]). Accordingly, defendant's challenge to the information on the ground that it failed to contain factual allegations demonstrating reasonable cause to believe that defendant possessed the substance is without merit.
As to the propriety of the sentences, we note that due to defendant's failure to, inter alia, complete the TASC program, the court's imposition of consecutive one year sentences on his conviction of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and menacing in the second degree (Penal Law § 120.14 [1]) was in compliance with the conditions set forth at the time of defendant's pleas thereto. Defendant's plea to the charge of criminal contempt in the second degree (Penal Law § 215.30 [3]) was, as the People concede, based on an unfulfilled promise. Thus, the plea must be vacated or the promise honored (see Santobello v New York, 404 US 257, 260 [1971]; People v Selikoff, 35 NY2d 227, 241 [1974]), and the choice rests within the sound discretion of the sentencing court. Accordingly, the judgment convicting defendant of criminal contempt in the second degree is reversed and the matter remanded to the court below for all further proceedings. [*3]
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 9, 2007
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