People v Ford (Barshawn)
Annotate this CaseDecided on October 30, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
2018-761 Q CR
The People of the State of New York, Respondent,
against
Barshawn Ford, Appellant.
Appellate Advocates (Samuel Barr of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Sharon Y. Brodt and Hannah X. Scotti of counsel), for respondent.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (John Zoll, J.), rendered April 12, 2018. The judgment convicted defendant, after a nonjury trial, of attempted tampering with physical evidence and unlawful possession of marihuana. The appeal brings up for review so much of an order of that court (Karen Gopee, J.) dated August 24, 2017 as denied the branch of defendant's motion seeking to dismiss the count charging defendant with attempted tampering with physical evidence on facial insufficiency grounds, and so much of an order of that court (Karen Gopee, J.) dated October 30, 2017 as, upon granting reargument, adhered to its prior determination denying the branch of defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the appeal, insofar as is from so much of the judgment as convicted defendant of unlawful possession of marihuana, is dismissed as academic; and it is further,
ORDERED that the judgment of conviction, insofar as reviewed, is reversed, on the law, and the count of the accusatory instrument charging defendant with attempted tampering with physical evidence is dismissed.
On May 11, 2016, defendant was arraigned on an information charging him with attempted tampering with physical evidence (Penal Law §§ 110.00, 215.40 [2]), obstructing governmental administration in the second degree (Penal Law § 195.05) and unlawful possession of marihuana (former Penal Law § 221.05). According to the accusatory instrument, on May 10, 2016, a police officer "observed . . . defendant [who was] holding and smoking a lit marijuana cigarette in a public place open to public view . . . rip said marijuana cigarette into pieces, throw said pieces over his shoulder behind him into tall grass and some weeds, thereby preventing the deponent from recovering said marijuana cigarette." The officer did "recover[] one (1) vial that contained a quantity of marijuana from the defendant's front sweatshirt pocket," which he identified "based upon his training in the identification and packaging of controlled substances and marijuana and a field test which deponent performed on the substance . . . which tested positive for marijuana."
Defendant moved to dismiss the attempted tampering and obstruction counts on facial insufficiency grounds and to dismiss the entire accusatory instrument on statutory speedy trial grounds (see CPL 30.30). By order dated August 24, 2017, the Criminal Court (Karen Gopee, J.) denied defendant's motion in its entirety. In an order dated October 30, 2017, the Criminal Court (Karen Gopee, J.) denied the branch of defendant's motion seeking leave to reargue the branch of his prior motion seeking to dismiss on facial insufficiency grounds, granted leave to reargue the branch of defendant's prior motion seeking to dismiss on speedy trial grounds and, upon reargument, adhered to its denial of that branch of defendant's prior motion. Following a nonjury trial, the court convicted defendant of attempted tampering with physical evidence and unlawful possession of marihuana, but acquitted him of obstructing governmental administration in the second degree. Defendant appeals, reasserting that the count of the accusatory instrument charging him with attempted tampering was alleged insufficiently and that he was prosecuted beyond statutory speedy trial time limits.
We agree that the attempted tampering charge was alleged insufficiently. The allegation that defendant's cigarette contained marihuana is wholly conclusory, and hence nonevidentiary. Although the officer observed defendant smoking a cigarette, he provides no further description, e.g., a distinctive smell or packaging, to support the bald conclusion that it was specifically a marihuana cigarette. Absent a sufficient evidentiary allegation of illegality within the four corners of the accusatory instrument, it would not be reasonable to infer that defendant either would have believed the cigarette could be used in an official proceeding or would have attempted to intentionally prevent its production (see Penal Law §§ 110.00, 215.40 [2]; cf. People v Lakins, 63 Misc 3d 139[A], 2019 NY Slip Op 50569[U], *2, n 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [finding the charge of obstructing governmental administration in the second degree facially insufficient, and the charge of attempted tampering with physical evidence "likely facially insufficient," in part because the accusatory instrument "did not state a basis for the officer's conclusion that the 'loose green vegetative matter,' which was allegedly swallowed, was, in fact, marihuana"]).
Additionally, the information is devoid of evidentiary allegations that directly or [*2]inferentially demonstrate that defendant destroyed and discarded the cigarette for the purpose of preventing its recovery. For example, it is not alleged that the officer was visible to defendant, was in uniform or otherwise identified himself to defendant as a police officer, was approaching defendant or had verbally ordered defendant to remain in place. "The court cannot require citizens to predict, assume or infer the directives of police authorities by surmise, thought transference or other faulty or fanciful manner" (People v Beam, 22 Misc 3d 306, 310 [Crim Ct, NY County 2008], cited with approval in Lakins, 63 Misc 3d 139[A], 2019 NY Slip Op 50569[U], *2 ["the accusatory instrument failed to allege that the police officer had directed or ordered defendant to engage in or refrain from certain activity"]).
Defendant's conviction of unlawful possession of marihuana "became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt," pursuant to CPL 160.50 (5), effective August 28, 2019 (People v Disano, 67 Misc 3d 131[A], 2020 NY Slip Op 50439[U], *1 [App Term, 1st Dept 2020]; see People v Williams, 65 Misc 3d 154[A], 2019 NY Slip Op 51908[U] [App Term, 1st Dept 2019] [same]; People v Taite, 65 Misc 3d 137[A], 2019 NY Slip Op 51671[U] [App Term, 1st Dept 2019] [same]).
In view of the foregoing, defendant's statutory speedy trial argument on appeal is rendered academic.
Accordingly, the appeal, insofar as is from so much of the judgment as convicted defendant of unlawful possession of marihuana, is dismissed as academic; the judgment of conviction, insofar as reviewed, is reversed and the count of the accusatory instrument charging defendant with attempted tampering with physical evidence is dismissed.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 30, 2020
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