Opinion
570034/15
10-22-2019
The PEOPLE of the State of New York, Respondent, v. Johnny BLANDING, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Anthony J. Ferrara, J.), rendered April 16, 2013, affirmed.
The prosecutor's information was not jurisdictionally defective (see People v. Inserra , 4 NY3d 30 [2004] ). Defendant's commission of the charged offenses was adequately pleaded in the underlying information. With respect to the charge of attempted criminal possession of a controlled substance in the seventh degree (see Penal Law §§ 110/220.03), the information set forth sufficient factual allegations to show the basis for the arresting officer's conclusion that the substance at issue was a controlled substance. The information recited that police recovered a "pipe containing crack/cocaine residue from defendant's sweatshirt pocket," and that the officer believed the substance to be crack/cocaine "based upon [his] professional training as a police officer in the identification of drugs, [his] prior experience as a police officer making drug arrests, and [his] observation of the packaging which is characteristic of this type of drug" (see People v. Smalls , 26 NY3d 1064 [2015] ; People v. Kalin , 12 NY3d 225, 231—232 [2009] ; People v. Pearson , 78 AD3d 445 [2010], lv denied 16 NY3d 799 [2011] ).
With respect to the charge of begging within 10 feet of a bank or ATM (see Administrative Code of City of NY § 10-136[b][2] ), the instrument alleged that a police officer observed defendant "standing on the sidewalk in front of and within ten feet of the entrance to Capital One Bank"; that the bank was "open for business"; that defendant was "begging" in that defendant "approach[ed] approximately three individuals while holding a cup containing money" and "holding the cup out to the individuals in a manner" the officer knew, based upon his "prior training and experience, to be consistent with begging." These allegations were sufficient for pleading purposes, "since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy" ( People v. Kasse , 22 NY3d 1142, 1143 [2014] ). Defendant's contention that the bank could not have been "open for business" at the time alleged was a matter to be raised as a defense at trial, not by insistence that the instrument was jurisdictionally defective (see People v. Konieczny , 2 NY3d 569, 577 [2004] ).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348—349 [2007] ). There is no basis upon which to disturb the trial court's determinations concerning credibility. Contrary to defendant's present contention, the parties stipulated that, if called to testify, the police laboratory technician would state that the substance in the pipe recovered from defendant was crack cocaine. The "technical or scientific basis for the testifying expert's conclusion [i]s not required to be presented as part of the People's direct case" ( People v. Moon , 256 AD2d 24 [1998], lv denied 93 NY2d 901 [1999] ). In any event, the existence of a controlled substance is not an element of attempted criminal possession of a controlled substance (see Penal Law §§ 110.00, 220.03 ; see also People v. Brooks, 127 AD3d 1407, 1408 n 2 [2015] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.