People v Johnson

[*1] People v Johnson 2015 NY Slip Op 51551(U) Decided on October 28, 2015 Criminal Court Of The City Of New York, New York County Statsinger, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 28, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Thomas Johnson, Defendant.



2015NY022318



For the People: Cyrus R. Vance, Jr., New York County District Attorney.

For the Defendant: The Legal Aid Society, by Japeth Baker, Esq.
Steven M. Statsinger, J.

Defendant, charged with criminal possession of marijuana in the fifth degree, Penal Law § 220.10(1), moves to dismiss. He asserts that the accusatory instrument fails to sufficiently allege the "public place" element of § 221.10(1), and that the reference in the instrument to a positive field test is "inadmissible hearsay." For the reasons that follow, the motion is DENIED. Defendant also moves to suppress physical evidence. As to that, the Court GRANTS a Dunaway/Mapp hearing.

I. FACTUAL BACKGROUND

A. The Allegations

According to the accusatory instrument, at 12:50 p.m. on March 13, 2015, a police officer saw the defendant holding a marijuana cigarette in front of a building in upper Manhattan. The officer recognized the substance in the cigarette as marijuana based on his training and experience and the odor emanating from the cigarette. This was confirmed through a positive field test.

B. Legal Proceedings

Defendant was issued a desk appearance ticket, but failed to appear on the scheduled date, April 27, 2015, and a bench warrant issued. On July 20, 2015, defendant returned on the warrant and was arraigned on a single count of criminal possession of marijuana in the fifth degree in violation of Penal Law § 221.20(1) . The court deemed the instrument an information and set a motion schedule.

Defendant filed the instant motion August 17, 2015. The matter has been sub judice since then.

II. THE INFORMATION

The information, sworn out by Police Officer Elvin Pichardo, provides that,:

I observed the defendant holding one cigarette containing marijuana in a public place and open to public view. I then observed the defendant place the cigarette containing marijuana on a building ledge. I then took the cigarette containing marijuana from the building ledge where I observed thedefendant place it.

I believe the substance is marijuana based upon: my professional training as a police officer in the identification of marijuana, my prior experience as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.

The information alleges that this occurred at 12:50 p.m. on March 13, 2015, " in front of" 39 Sickles Street in New York County.

III. DISCUSSION

The information in this case sufficiently alleges the "public place" element of Penal Law § 220.10. Moreover, the reference in the information to a positive field test result does not, even if hearsay, require a finding that the accusatory instrument is either facially insufficient or unconverted.

A. Facial Insufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12 N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., [*2]assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

B. "Public Place"

Section 220.10(1) prohibits the possession of marijuana in a "public place," where the marijuana is, as pertinent here, "open to public view." A "public place" is:

a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.

Penal Law § 240.00(1). Contrary to the defendant's argument, there is a reasonable inference that an information that describes the possession of marijuana "in front of" a particular street address makes out a prima facie case of the "public place" element.

The term "public place" is to be construed "very broadly." People v. Sherman, 24 Misc 3d 344, 882 N.Y.S.2d 855 (Crim Ct NY County 2009). That "a member of the public may pass by is certainly part of the essence of a public place." People v. McNamara, 78 NY2d 626, 633, 585 N.E.2d 788, 793, 578 N.Y.S.2d 476, 481 (1991). Thus, for example, in People v. Chen Ye, 179 Misc 2d 592,685 N.Y.S.2d 602 (Crim Ct NY County 1999), the allegation that the defendant was selling merchandise "in front of" 270 Broadway sufficiently alleged this element. Similarly, in People v. Jobi, 10 Misc 3d 632,803 N.Y.S.2d 891 (Crim Ct NY County 2005), the allegation that the activity took place at the "corner of Canal and Baxter Streets" was likewise sufficient.

However, where the information alleges that a person possessed marijuana "at" a particular address, or inside of an apartment, it does not make out this element. Sherman, 24 Misc 3d at 344, 882 N.Y.S.2d at 855 (possession "at" a particular address); People v. Santos, 46 Misc 3d 1217(A), 9 N.Y.S.3d 595 (Crim Ct NY County 2015) (possession of marijuana inside of a bedroom within a residential apartment). But, as the court observed in Sherman, "[h]ad the information stated that the defendant was observed to possess the marihuana in front of' the stated address, that would have sufficed to allow the reasonable inference that the defendant possessed the marihuana while situated on a public street at the specified location." 24 Misc 3d at 344, 882 N.Y.S.2d at 855 .

This Court agrees. There is a perfectly reasonable inference that the reference to the defendant's being "in front of" a particular street address when seen with a marijuana cigarette means that he was in a "public place." That is, a place where a member of the public might "pass by" and see him with the marijuana. McNamara, 78 NY2d at 633, 585 [*3]N.E.2d at 793, 578 N.Y.S.2d at 481. The Court also notes that, while § 240.00(1) uses the term "highway[]," and not the term "street," a street is a "highway" under VTL § 134.

The Court simply cannot accept defendant's argument that the language used in the information could "refer to the lobby of an apartment building or to [an] enclosed parking garage." Baker Aff. at ¶ 15. The Court of Appeals has forbidden precisely such strained or hyper-technical constructions of criminal pleadings. People v. Casey, 95 NY2d 354, 360 740 N.E.2d 233, 236 717 N.Y.S.2d 88, 91 (2000). The phrase "in front of" a particular address is perfectly clear and detailed. The words mean exactly what they say: the defendant was on the street or sidewalk abutting the front of that building. The phrase "in front of" also clearly gives the defendant "notice sufficient to prepare a defense and ... to prevent [him] from being tried twice for the same offense." Id. Nothing more is required.

Finally, the Court finds that the cases relied on by the defendant are inapposite. Neither People v. Checo, 2004NY058798 (Crim Ct NY County 2004) (unpublished order), nor People v. Flood, 2000NY035047 (Crim Ct NY County 2000) (unpublished order), involved an information alleging that the defendant possessed marijuana "in front of" a specified address. Each used the word "at," which, as in Sherman, 24 Misc 3d at 344, 882 N.Y.S.2d at 855, might not always be sufficient to describe a public place. Those cases are not relevant here.

Accordingly, the information is facially sufficient as to the "public place" element of Penal Law § 221.10(1).

C. The Field Test

In this case, the People did not file with the Court a copy of the field test result described in the information. But, because the information otherwise makes out a prima facie case that the substance the office recovered was marijuana, this omission neither renders the information unconverted nor facially insufficient.[FN1]

It is well settled that neither a laboratory report or a field test report is necessary for the accusatory instrument to be deemed an information in a marijuana case if the deponent swears that he believes the substance to be marijuana based on his training and experience. E.g., People v. Dixon, 42 Misc 3d 1228(A),988 N.Y.S.2d 524 (Poughkeepsie City Ct 2014); People v. Singh, 25 Misc 3d 924, 885 N.Y.S.2d 187 (Crim Ct Queens County 2009). See, generally, People v. Kalin, 12 NY3d 225, 231, 906 N.E.2d 381, 384, 878 N.Y.S.2d 653, 656 (2009).

Thus, here, even if, arguendo, the reference to the field test were hearsay, it would not matter. The Criminal Procedure Law does not require that an accusatory instrument [*4]be stripped of all hearsay before it can be deemed an information. It merely requires that there be "non-hearsay allegations" in support of each element of every charged offense. CPL § 100.40(1)(c). That requirement is satisfied here by the deponent officer's explanation of how his training and experience led him to the conclusion that the substance that the defendant possessed was in fact marijuana. Thus, whether or not the reference to the field test result is hearsay, the accusatory instrument here is indeed an information.

It is also facially sufficient. Even ignoring the reference to the field test result, the information makes out a prima facie case that the substance the officer recovered from the defendant is indeed marijuana. Kalin, 12 NY3d at 231, 906 N.E.2d at 384, 878 N.Y.S.2d at 656.

D. Conclusion

Those branches of the defendant's motion that seek dismissal for facial insufficiency or a declaration that the accusatory instrument is not an information are denied.

IV. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss is denied. However, the Court orders a Dunaway/Mapp hearing.

Dated: October 28, 2015_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court Footnotes

Footnote 1:In any event, even if the Court agreed that the reference to the field test result rendered the accusatory instrument unconverted, dismissal would not be the appropriate remedy; adjournment for conversion would be.