People v Irizarry
Annotate this CaseDecided on May 6, 2013
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Gilbert Irizarry, Defendant.
2012BX052381
For the People, Robert T. Johnson, District Attorney, Bronx County, by Jennifer Shaw, Esq., Assistant District Attorney.
For the Defendant Martha Kashickey, Esq., Bronx Defenders
John H. Wilson, J.
Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.3), a Class A misdemeanor.
By omnibus motion dated March 17, 2012, Defendant seeks the following; dismissal of the sole charge, asserting that the People's complaint is facially insufficient; suppression of all physical evidence seized and statements made at the time of the Defendant's arrest; and any evidence of any prior bad acts or immoral conduct.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated April 1, 2013.
For the reasons stated below, the motion to dismiss for facial insufficiency is granted to the extent of ordering the People to provide a superceding information to the Court and defense within 30 days of the date of publication of this decision.
Should the People successfully supercede the complaint, the motions for pre-trial [*2]hearings are granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest, and whether or not physical evidence was seized and statements were taken in violation of Defendant's rights under the United States and New York State Constitutions.
The motion for a pre-trial hearing regarding whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
FACTUAL STATEMENT
Pursuant to the Criminal Court complaint dated May 19, 2012, Police Officer Arvid Flores observed the Defendant, at 12:085 AM, in front of 1144 Stratford Avenue, Bronx New York "smoking a lit cigarette containing alleged Phencyclidine (PCP) which he dropped to the floor by his left foot as the arresting officer approached him." See, Criminal Court complaint dated May 19, 2012, p 1.
The officer also states that "based on (his) training and experience" he believes the substance recovered to be Phencyclidine (PCP). The officer further states that he has received training "in the recognition of controlled substances...as well as their packaging and prescribed controlled substances based upon the label on the container." See, Criminal Court complaint dated May 19, 2012, p 1-2.
THE SOLE CHARGE OF THE DOCKET IS FACIAL INSUFFICIENT; HOWEVER, THE PEOPLE WILL BE GIVEN THE CHANCE TO SUPERCEDE THE CRIMINAL COURT COMPLAINT
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, [*3]512 NYS2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the complaint before this Court are facially insufficient.
Under People v. Kalin, 12 NY3d 225, 230, 878 NYS2d 653 (2009), "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." Citing, People v. Konieczny, 2 NY3d 569, 575, 780 NYS2d 546 (2004), citing, People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000).
Thus, under Kalin, "the sworn allegations by the arresting officer were sufficient to satisfy the requirements of an information." See, People v. Jennings, 34 Misc 3d 137(A), 946 NYS2d 68 (App Term, 2d, 11th and 13th Dist, 2011); People v. Mack, 29 Misc 3d 140(A), 920 NYS2d 243 (App Term, 1st Dept, 2010).
The Kalin Court did warn that "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." 12 NY3d at 229. In fact, those factual allegations must "provide some information as to why the officer concluded that the substance was a particular type of illegal drug." See, People v. Oliver, 31 Misc 3d 130(A), 927 NYS2d 818 (App Term, 2d, 11th and 13th JD, 2011) p 2, citing Kalin, 12 NY3d at 231-232, lv app den, 17 NY3d 954, 936 NYS2d 80 (2011).
The allegations in the complaint must give a defendant "sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy." Oliver, 31 Misc 3d 130(A), p 2, citing Kalin, 12 NY3d at 231-232.
Here, the officer asserts that the substance recovered is Phencyclidine (PCP). The officer further states that he has received training "in the recognition of controlled substances...as well as their packaging and prescribed controlled substances based upon the label on the container." See, Criminal Court complaint dated May 19, 2012, p 1-2 (emphasis added).
The complaint describes the "packaging" of the controlled substance recovered as " a lit cigarette" which Defendant was allegedly smoking "which he dropped to the floor by his left foot as the arresting officer approached him." See, Criminal Court complaint dated May 19, 2012, p 1.
To this Court's knowledge, a "lit cigarette" is not "packaging" which, in and of itself, would commonly indicate to anyone, trained or otherwise, the presence of Phencyclidine (PCP). There is also no allegation that said lit cigarette included any "label on the container" by which the officer could ascertain the presence of the alleged controlled substance. [*4]
Therefore, the allegations stated in the Criminal Court complaint are conclusory, in that they fail to enumerate any "packaging" or "label" by which the officer could reasonably ascertain the presence of a controlled substance in the "lit cigarette" recovered. As such, this complaint violates the standards for "the requirements of an information" as enumerated in Kalin, making prosecution of the Defendant under this accusatory instrument a violation of his right to due process. See, People v. Nunn, 24 Misc 3d 944, 882 NYS2d 887 (Crim Ct, Kings Cty, 2009). See, also, Kalin, 12 NY3d at 231-232; Oliver, 31 Misc 3d 130(A), p 2.
Nonetheless, under the facts of this case, the People will be given the opportunity to supercede the Criminal Court complaint.
In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because...the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).
In many instances, "the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible." See, People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas.
Under the circumstances of this case, it should be a simple matter for the People to correct the defect, and state the necessary additional facts in their information. Further, the People should have no difficulty in providing a laboratory analysis for the substance recovered. Therefore, the People will be given the opportunity to cure this error by "either filing a superceding information or prosecutor's information." See, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003).
Thus, the People have 30 days from the date of publication of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.
OTHER RELIEF REQUESTED
Defendant has moved for suppression of any statements made or physical evidence recovered from his person at the time of his arrest. Should the People successfully supercede the complaint, this motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not the physical evidence seized and statements taken were legally obtained, and whether or not there was probable cause for the Defendant's arrest will be considered. [*5]
Defendant also seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant will be conducted by the trial judge, prior to any trial of this matter.
All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.
Dated: Bronx, New YorkMay 6, 2013
_______________________________Hon. John H. Wilson, JCC
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