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INFORMATION ADEQUATELY ALLEGED CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE; THE APPEARANCE OF BURNT RESIDUE IN A GLASS PIPE, TOGETHER WITH ALLEGATIONS THE OFFICER HAD THE REQUISITE TRAINING AND EXPERIENCE SUFFICIENT.

The Court of Appeals determined the heightened requirements for a misdemeanor information were met by the information charging defendant with criminal possession of a controlled substance seventh degree:

Here, …  the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.

That the substance at issue here was a burnt residue does not dictate a different result. …[A]n information's description of the characteristics of a substance combined with its account of an officer's training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance. People v Smalls, 2015 NY Slip Op 09188, CtApp 12-15-15

CRIMINAL LAW (SUFFICIENCY OF MISDEMEANOR INFORMATION, POSSESSION OF CONTROLLED SUBSTANCE)/MISDEMEANOR INFORMATION (SUFFICIENT ALLEGATION OF POSSESSION OF A CONTROLLED SUBSTANCE)/POSSESSION OF A CONTROLLED SUBSTANCE (SUFFICIENCY OF MISDEMEANOR INFORMATION)

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Lobby of Public Housing Unit Is Not “Open to the Public” Within the Meaning of the Law of Trespass

The Court of Appeals determined the misdemeanor information charging defendant with criminal trespass second degree was sufficient. The defendant was in the lobby of a public housing unit where a “no trespassing” sign was posted. When asked, the defendant said he did not reside in the building and could not identify any resident who had invited him. The court explained the elements of all three degrees of trespass and found that the lobby of a public housing unit is not “open to the public” within the meaning of the law of trespass:

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings … . The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so. People v Barnes, 2015 NY Slip Op 07577, CtApp 10-20-15

 

Superior Court Information Was Jurisdictionally Defective—The Offenses Were Not the Same As, or Lesser Included Offenses of, Those In the Felony Complaint

The Third Department determined defendant’s plea to a superior court information (SCI) could not stand because the crimes in the information were not the same as, or lesser included offenses of, those in the felony complaint:

… [T]he SCI was jurisdictionally defective in this case. The crimes charged in the SCI, to which defendant pleaded guilty, were required to be the same or lesser included offenses of those listed in the felony complaint … . However, the only crimes listed in the felony complaint were the class E felony of possessing a sexual performance by a child and two class A misdemeanors. The SCI, on the other hand, charged defendant with the class C felony of use of a child in a sexual performance and the class B felony of course of sexual conduct against a child in the first degree. Clearly, the latter crimes were not lesser included offenses of the former. Accordingly, due to this jurisdictional defect, we are constrained to conclude that the guilty plea must be vacated and the matter remitted to County Court for further proceedings. People v O’Neill, 2015 NY Slip Op 05517, 3rd Dept 6-24-15

 

Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense Which Was In the Indictment, or Any Lesser Included Offense

The Fourth Department determined the failure of the superior court information (SCI) to include the offenses in the indictment, or any lesser included offenses, required reversal of the defendant’s conviction:

The two counts charged in the SCI were not offenses for which defendant was held for action of a grand jury (see CPL 195.20), i.e., those two counts were not included in the felony complaint, and they were not lesser included offenses of an offense charged in the felony complaint … . “[T]he primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein” (CPL 180.10 [1]). Thus, ” the waiver procedure is triggered by the defendant being held for [g]rand [j]ury action on charges contained in a felony complaint . . . and it is in reference to those charges that its availability must be measured’ ” … . Inasmuch as the SCI to which defendant pleaded guilty did not “include at least one offense that was contained in the felony complaint,” it was jurisdictionally defective … . That defect does not require preservation, and it survives defendant’s waiver of the right to appeal and his guilty plea … . People v Tun Aung, 2014 NY Slip Op 03135, 4th Dept 5-2-14

 

Reference to Statute Cured Any Omissions from the Description of the Elements of the Offense Charged in a Superior Court Information

The Third Department noted that a Superior Court Information (SCI) charging aggravated unlicensed operation was sufficient even though it did not state the road upon which defendant was driving was a public highway because the SCI specifically referenced Vehicle and Traffic Law 511 (3) (a) and therefore incorporated all the elements of the crime:

…[D]efendant argues that the SCI failed to allege all material elements of aggravated unlicensed operation of a motor vehicle in the first degree because the People did not state that the crime occurred on a public highway (see Vehicle and Traffic Law § 511 [3] [a]). While this claim survives defendant’s guilty plea and appeal waiver …, no defect exists when the SCI incorporates elements by specific reference to the crime’s relevant statutory authority, because such incorporation “constitute[s] allegations of all the elements of the crime” …, while also giving the defendant “fair notice of the charges made against him [or her]” … . Here, although the SCI failed to state that the road on which defendant was driving was a public highway, it specifically referenced Vehicle and Traffic Law § 511 (3) (a) and, as such, sufficiently incorporated all of the specific elements of the crime. People v Brothers, 2014 NY Slip Op 08682, 3rd Dept 12-11-14

 

Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint

The Second Department determined the superior court information to which defendant pled guilty after waiving indictment was jurisdictionally defective because it did not include at least one offense that was in the original felony complaint (or a lesser-included offense):

The defendant was charged, by felony complaint, with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), a class B felony. He waived indictment by a grand jury and pleaded guilty under a superior court information to attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1), a class C felony. As the defendant contends and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1) is not a lesser included offense of criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), because the former crime contains the element “with intent to sell” that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20[37]…). Thus, it is clear that the superior court information upon which the defendant's plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint …, and the superior court information was jurisdictionally defective … . This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Nemnon, 2014 NY Slip Op 08460, 2nd Dept 12-3-14

 

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Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration.  Defense counsel's statement “so waived” was deemed adequate to waive prosecution by information.  The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70…). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]…).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” … . We have called this “the prima facie case requirement” (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant … . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense … .

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act … . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]…). People v Dumay, 2014 NY Slip Op 04038, CtApp 6-5-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

Not Clear Superior Court Information (SCI) Charged Same Offense as Felony Complaint/SCI and Related Waiver of Indictment Not Valid

The Second Department determined a discrepancy between the felony complaint and the superior court information (SCI) rendered the SCI jurisdictionally defective:

Where a defendant waives the right to be prosecuted by indictment and consents to be prosecuted by SCI, the SCI “must either charge [the] defendant with the same crime as the felony complaint or a lesser included offense of that crime” (…see NY Const, art I, § 6; CPL 195.10[a]…). Under the circumstances of this case, this Court cannot conclude that the defendant was charged in the SCI with the same offense with which he was charged in the felony complaint. There is a factual discrepancy between the two documents, in that they charge the defendant with assaulting two different victims, and there are insufficient surrounding facts to reveal that the assault charges actually refer to the same incident… .  People v Siminions, 2013 NY Slip Op 08670, 2nd Dept 12-26-13

 

 

Naming Different Victim Rendered Superior Court Information Jurisdictionally Defective

The Fourth Department reversed the defendant’s conviction (by guilty plea) because the superior court information (SCI) was jurisdictionally defective.  The SCI and the felony complaint named different victims:

We note that defendant’s contention that the SCI is jurisdictionally defective does not require preservation, and that contention survives defendant’s valid waiver of the right to appeal….“[T]he designation of a[n individual] in the [SCI] different from the [individual] named in the felony complaint renders the crime contained in the information a different crime entirely”…. Thus, defendant was not held for action of a grand jury on the charge in the SCI inasmuch as “it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint”… .   People v Stevenson, 648, 4th Dept, 6-14-13

 

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