People v Price (Michael)

[*1] People v Price (Michael) 2015 NY Slip Op 51415(U) Decided on September 17, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2012-1389 RI CR

The People of the State of New York, Respondent,

against

Michael Price, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered April 11, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree. The appeal from the judgment of conviction brings up for review an order of the same court dated February 8, 2012 (op 35 Misc 3d 1203[A], 2012 NY Slip Op 50548[U]) denying defendant's motion to dismiss the accusatory instrument as facially insufficient.

ORDERED that the judgment of conviction is affirmed.

Defendant, who was charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) for the possession of 14 oxycodone pills, a schedule II controlled substance (Public Health Law § 3306), moved to dismiss the accusatory instrument as facially insufficient, and the People opposed the motion. The Criminal Court, in a written decision (op 35 Misc 3d 1203[A], 2012 NY Slip Op 50548[U]), denied defendant's motion, finding that the instrument was facially sufficient. Thereafter, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, as charged, and was sentenced to a conditional discharge. On appeal, defendant again challenges the accusatory instrument's facial sufficiency, contending that it did not allege that it was unlawful for him to have possessed the oxycodone pills in that he did not have a valid prescription for them.

At the outset, we note that defendant's argument concerning the accusatory instrument's facial sufficiency is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]). As defendant, through his counsel, expressly waived his right to be prosecuted by information (cf. People v Kalin, 12 NY3d 225 [2009]; People v Weinberg, 34 NY2d 429 [1974]), the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (see People v Dumay, 23 NY3d 518 [2014]). A misdemeanor complaint, together with any supporting depositions, is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charges (CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the offenses charged (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). Moreover, so long as the factual allegations of an accusatory instrument provide " 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 [*2]at 230; quoting People v Konieczny, 2 NY3d at 575; see People v Dumay, 23 NY3d at 524).

Pursuant to Penal Law § 220.03, "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance." Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement (see People v Dumas, 68 NY2d at 731). However, a laboratory report is not required to accompany an accusatory instrument charging a defendant with criminal possession of a controlled substance in the seventh degree for it to be facially sufficient (see People v Kalin, 12 NY3d at 231; Matter of Jahron S., 79 NY2d 632, 640 [1992]; People v Pearson, 78 AD3d 445 [2010]). Rather, an accusatory instrument charging possession of a controlled substance can be sufficient so long as the factual allegations therein establish the basis of the arresting officer's belief that the substance seized was a particular type of controlled substance (see People v Kalin, 12 NY3d at 229; People v Dumas, 68 NY2d at 731). We find that the accusatory instrument, together with the supporting deposition herein, not only identified the particular controlled substance defendant allegedly possessed, but also stated, based on the arresting officer's familiarity and training in the identification of controlled substances, and based on the markings contained on the pills, why the officer concluded that the substance recovered was oxycodone (see People v Dumas, 68 NY2d at 729; cf. People v Kalin, 12 NY3d at 229-231). These sworn allegations by the arresting officer sufficiently established the basis for his belief that defendant was in possession of oxycodone, a controlled substance (see People v Chao, 39 Misc 3d 148[A], 2013 NY Slip Op 50941[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Oliver, 31 Misc 3d 130[A], 2011 NY Slip Op 50581[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Furthermore, the accusatory instrument was facially sufficient even though it did not allege that it was unlawful for defendant to have possessed the oxycodone pills in that he did not have a valid prescription for them (see People v Torres, 47 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2015]; see also People v Lobianco, 2 Misc 3d 419 [Crim Ct, Kings County 2003]).

In light of the foregoing, we need not address defendant's remaining contentions.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: September 17, 2015