People v Williams (Steven)

[*1] People v Williams (Steven) 2010 NY Slip Op 50422(U) [26 Misc 3d 144(A)] Decided on March 9, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2008-2246 N CR.

The People of the State of New York, Respondent,

against

Steven Williams, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J., at plea and sentence), rendered November 17, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the seventh degree. The appeal brings up for review an order of the same court (Robert H. Spergel, J.), denying defendant's motion for, among other things, dismissal of the accusatory instrument.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with, and convicted of, attempted criminal possession of a controlled substance in the seventh degree (Penal Law §§ 110.00, 220.03). He was initially charged with that offense in a misdemeanor complaint. He filed a motion seeking, among other things, dismissal of the complaint on the ground that it was facially insufficient. While his dismissal motion was pending, the People filed an information charging the same offense (see CPL 100.50 [3]). The District Court then denied, on the merits, the portion of the motion seeking dismissal of the complaint, without addressing the facial sufficiency of the information. On appeal, defendant again argues that the complaint was facially insufficient, and contends that the District Court erred in denying his dismissal motion.

The issue of the facial sufficiency of the misdemeanor complaint is moot since the information, when filed, "replaced" the misdemeanor complaint (CPL 170.65 [1]). The information was facially sufficient. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Kalin, 12 NY3d 225, 230 [2009] [internal quotation marks, brackets and citations omitted]). "[G]iven a fair and not overly restrictive or technical reading" (id.), the factual allegations here "provide reasonable cause to believe" (CPL 100.40 [1] [b]), and "establish, if true" (CPL 100.40 [1] [c]), that defendant attempted to purchase crack cocaine, and failed only because the substance being sold by the undercover officer was imitation crack cocaine, rather than real crack cocaine. The presence of an allegation that the substance was an imitation did not render the information facially insufficient,
because the fact that the substance was an imitation did not negate the charged offense (see Penal [*2]Law § 110.10; People v Duprey, 98 AD2d 110, 113 [1983]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: March 09, 2010