People v Walters (James)

[*1] People v Walters (James) 2015 NY Slip Op 51463(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-558 RI CR

The People of the State of New York, Respondent,

against

James Walters, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Charles J. Heffernan, J.H.O., at hearing; Mario F. Mattei, J., at plea and sentence), rendered February 21, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.

ORDERED that the judgment of conviction is reversed, on the law, the count of the accusatory instrument charging criminal possession of marihuana in the fifth degree is dismissed, and, as a matter of discretion in the interest of justice, the remaining count of the accusatory instrument, unlawful possession of marihuana, is dismissed.

On December 18, 2011, the People charged defendant, in an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) and unlawful possession of marihuana (Penal Law § 221.05), alleging that, on the previous day, a police officer had observed defendant drop a clear ziplock bag containing what a laboratory analysis proved to be marihuana, "at . . . 514 Targee St.," Richmond County, New York, a "public place" that is "open to public view." On February 21, 2013, following the denial, after a hearing, of his motion to suppress the marihuana, defendant pleaded guilty to criminal possession of marihuana in the fifth degree in satisfaction of the accusatory instrument, and was sentenced, among other things, to a conditional discharge. On appeal, defendant challenges the facial sufficiency of the instrument, alleging that the factual allegations failed to establish that the offenses occurred in a "public place" or that they were "open to public view," and argues that the marihuana should have been suppressed.

As defendant waived prosecution by information, the sufficiency of the accusatory instrument is measured by the standards applicable to a misdemeanor complaint (see CPL 170.65 [1], [3]; People v Dumay, 23 NY3d 518 [2014]), but, even by those standards, the accusatory instrument is facially insufficient. Although the broadly construed definition of the "public place" element in Penal Law § 221.10 (1) (see Penal Law § 240.00 [1]) may not be coextensive with the term as used in the public lewdness statutes (see People v Jackson, 18 NY3d 738, 746-747 [2012]), in People v McNamara (78 NY2d 626, 634 [1991]), the Court of Appeals held that the mere reference to a street address is insufficient to establish the public place element because "the address could as readily refer to a private driveway as to a residential street" (e.g. People v Matthews, 115 AD3d 625, 625 [2014]; People v Sherman, 24 Misc 3d 344, 350 [Crim Ct, NY County 2009]; see also People v Watts, 2012 NY Slip Op 50957[U], *4 [Crim Ct, NY County 2012] ["inside" an address insufficient]). While courts have found accusatory instruments sufficient under the Penal Law § 240.00 (1) standard where there is some factual assertion, in addition to the address, supporting the otherwise conclusory assertion that the offense occurred in [*2]a public place (see e.g. People v Campbell, 41 Misc 3d 143[A], 2013 NY Slip Op 52057[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2013] ["sidewalk"]; People v Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50221[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011] ["sidewalk"]; People v Jackson, 26 Misc 3d 133[A], 2010 NY Slip Op 50092[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010 ["in front of" the address]; People v W.J., 27 Misc 3d 1222[A], 2010 NY Slip Op 50841[U], *2 [Crim Ct, NY County 2010] ["opposite" the address]; People v Jackson, 17 Misc 3d 788, 792-793 [Crim Ct, NY County 2007] ["at the corner" of two streets]; see also People v Reynoso, 77 AD3d 528, 528 [2010] ["entry vestibule" of a building (decided under Penal Law § 245.00)]; People v Singh, 47 Misc 3d 136[A], 2015 NY Slip Op 50504[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015] ["in front of" the address (decided under Penal Law § 245.00)]), here, there were no facts asserted to support an inference that "at . . . 514 Targee St.," where the offense was committed, is a public place or is open to public view (e.g. People v Oquendo, 39 Misc 3d 70, 71-72 [App Term, 1st Dept 2013]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently the accusatory instrument, insofar as it charged defendant with the count of criminal possession of marihuana in the fifth degree, is legally insufficient, and that count of the accusatory instrument is dismissed.

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

Since the remaining count of the accusatory instrument, unlawful possession of marihuana, is a violation, there would be little penological purpose to remitting the case for further proceedings on that charge. Therefore, as a matter of discretion in the interest of justice, we dismiss that count as well (see Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U], *2).

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

Decision Date: September 17, 2015