People v Allen (James)

[*1] People v Allen (James) 2015 NY Slip Op 51933(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1896 K CR

The People of the State of New York, Respondent,

against

James Allen, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Gilbert C. Hong, J.), rendered July 23, 2012. The judgment convicted defendant, after a nonjury trial, of attempted criminal possession of a controlled substance in the seventh degree.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was found guilty of attempted criminal possession of a controlled substance in the seventh degree (Penal Law §§ 110.00, 220.03). On appeal, defendant contends that the accusatory instrument is jurisdictionally defective because the factual part of the accusatory instrument contained insufficient allegations of the charged offense.

The accusatory instrument charged defendant with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), alleging "that on or about December 8, 2011, at approximately 12:15 PM at [the] North East corner [of] Fulton [S]treet and Waverly [A]venue, County of Kings, State of New York, the defendant committed the offense of" criminal possession of a controlled substance in the seventh degree, based on the sworn statement of Officer Louis A. Doria "that, at the above time and place," he had "observed the defendant in possession of a quantity of crack cocaine which [he] recovered from the ground where [he had] observed defendant drop it." The factual portion of the accusatory instrument further provided, in pertinent part, that Doria "has had professional training as a police officer in the identification of crack cocaine, has previously made arrests for the criminal possession of crack cocaine, has previously seized crack cocaine that was determined to be such by the Police Department Laboratory and the crack cocaine in this case possesses the same physical characteristics as the previously chemically identified crack cocaine, by professional training as a police officer familiar with the common methods of packaging crack cocaine and the plastic twist used to package the crack cocaine in this case is a commonly used method of packaging crack cocaine. Based upon the foregoing, in [Doria's] opinion, the substance in this case is crack cocaine."

Since defendant did not waive prosecution by information, the facial sufficiency of the accusatory instrument must be reviewed according to the requirements of an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d 225, 228 [2009]). For an information to be facially sufficient, it must, among other things, allege facts of an evidentiary character, which, if true, establish reasonable cause to believe that the defendant committed the charged offense, and establish every element of the offense charged and the defendant's commission [*2]thereof (see CPL 100.15 [3]; 100.40 [1] [c]; People v Kalin, 12 NY3d at 228-229; People v Jones, 9 NY3d 259, 262 [2007]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional, and the failure to satisfy them may be asserted at any time, including for the first time on appeal (see People v Kalin, 12 NY3d at 229; People v Scott, 47 Misc 3d 138[A], 2015 NY Slip Op 50588[U], * 1 [App Term, 2d, 11th & 13th Jud Dists 2015]).

In People v Kalin (12 NY3d at 231-232), the Court of Appeals indicated that the factual part of an information charging criminal possession of a controlled substance in the seventh degree must "adequately [identify] the particular drug, [allege] that the accused possessed that illegal substance, [state] the officer's familiarity with and training regarding the identification of the drug, [provide] some information as to why the officer concluded that the substance was a particular type of illegal drug, and [supply] sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy." The factual part of the information in the case at bar met these requirements (see People v Pearson, 78 AD3d 445 [2010]; People v Oliver, 31 Misc 3d 130[A], 2011 NY Slip Op 50581[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Bracy, 31 Misc 3d 130[A], 2011 NY Slip Op 50577[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Colon, 19 Misc 3d 139[A], 2008 NY Slip Op 50897[U], *1 [App Term, 9th & 10th Jud Dists 2008]; cf. Matter of Brandon A., 105 AD3d 1365, 1366 [2013]).

Accordingly, the judgment of conviction is affirmed.

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

Decision Date: December 31, 2015