Opinion
2017-1556 Q CR
02-19-2021
The PEOPLE of the State of New York, Respondent, v. Kelvin DALRYMPLE, Appellant.
New York City Legal Aid Society ( Ying-Ying Ma of counsel), for appellant. Queens County District Attorney ( Johnnette Traill, Sharon Y. Brodt and Aurora Alvarez-Calderon of counsel), for respondent.
New York City Legal Aid Society ( Ying-Ying Ma of counsel), for appellant.
Queens County District Attorney ( Johnnette Traill, Sharon Y. Brodt and Aurora Alvarez-Calderon of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
ORDERED that the judgments of conviction are affirmed.
In 2016, defendant was charged in docket 2016QN049226 with assault in the third degree ( Penal Law § 120.00 [1] ) and harassment in the second degree ( Penal Law § 240.26 [1] ). In 2017, defendant was charged in docket CR-011614-17QN with obstructing governmental administration in the second degree ( Penal Law § 195.05 ), criminally using drug paraphernalia in the second degree ( Penal Law § 220.50 [3] ), criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [2] ) and criminal possession of marihuana in the fifth degree ( Penal Law § 221.10 [2] ). Defendant pleaded guilty to assault in the third degree and obstructing governmental administration in the second degree, respectively, to satisfy the dockets. He now argues that the top charge of the 2016 docket of assault in the third degree and every charge of the 2017 docket are alleged insufficiently on the faces of the respective accusatory instruments, rendering them both jurisdictionally defective.
At the time of defendant's conviction on July 19, 2017, Penal Law § 221.10 (2) was a class B misdemeanor under which it was a crime to "knowingly and unlawfully possess[ ] ... one or more preparations, compounds, mixtures or substances containing marihuana and [with] an aggregate weight of more than twenty-five grams." As of January 1, 2020, this former subsection (2) has been reclassified as a stand-alone "violation punishable only by a fine of not more than two hundred dollars" and requiring an "aggregate weight of more than one ounce" ( Penal Law § 221.10 ).
Since defendant expressly waived prosecution by information, the accusatory instruments must be evaluated under the standards that govern a misdemeanor complaint ( see People v Dumay , 23 NY3d 518, 524 [2014] ); namely, each is sufficient on its face if it contains factual allegations of an evidentiary character supporting or tending to support the charge ( see CPL 100.15 [3] ) and provides reasonable cause to believe that the defendant committed the crime charged ( see CPL 100.40 [4] [b] ; People v Dumas , 68 NY2d 729, 731 [1986] ). The facial insufficiency of an accusatory instrument constitutes a jurisdictional defect ( see People v Alejandro , 70 NY2d 133 [1987] ), which is not forfeited by a defendant's guilty plea ( see People v Dreyden , 15 NY3d 100, 103 [2010] ; People v Lucas , 11 NY3d 218, 220 [2008] ; People v Konieczny , 2 NY3d 569, 573 [2004] ), and which must be reviewed despite a defendant's failure to raise it in the Criminal Court ( see Alejandro , 70 NY2d 133 ).
With respect to the 2016 docket, the allegations of the accusatory instrument that "defendant punched [the complainant] in the face causing a bleeding laceration and swelling to his lip," as well as substantial pain, render the charge of assault in the third degree, to which defendant pleaded guilty, jurisdictionally sufficient ( see e.g. People v Cordova , 62 Misc 3d 148[A], 2019 NY Slip Op 50227[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Raymond , 51 Misc 3d 149[A], 2016 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Biamonte , 19 Misc 3d 139[A], 2008 NY Slip Op 50896[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).
It is alleged in the accusatory instrument for the 2017 docket that a police officer observed a vehicle, in which defendant was a front seat passenger, "accelerat[ing] at a high rate of speed," leading to the effectuation of a traffic stop. "[U]pon asking multiple times for the defendant and the apprehended other to step out of the vehicle, both ... refused." Subsequently, an officer "recovered a black and silver knife from the center console of the ... vehicle" and "a bag which contained 41 bags containing a quantity of marijuana which [h]as an aggregate weight of 46 grams and a scale from the front passenger seat floor of the ... vehicle," where defendant was seated.
Defendant asserts that the allegation of the vehicle "accelerat[ing] at a high rate of speed" does not necessarily mean the vehicle was traveling faster than the speed limit, and therefore the accusatory instrument fails to sufficiently demonstrate that the traffic stop constituted an "official function." This argument, however, disregards the requirement of the Court of Appeals that "the factual allegations of an [accusatory instrument] ... be given a fair and not overly restrictive or technical reading" ( People v Casey , 95 NY2d 354, 360 [2000] ). Instead, we "draw[ ] reasonable inferences from all the facts set forth in the accusatory instrument" ( People v Jackson , 18 NY3d 738, 747 [2012] ), and find that the allegation of a "high rate of speed" reasonably implies that the vehicle was speeding unlawfully, i.e., whether "at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing," in violation of Vehicle and Traffic Law § 1180 (a), or at a speed greater than the established maximum speed limit, in violation of Vehicle and Traffic Law § 1180 (b), (d). Therefore, the car stop effectuated by the police to investigate the observed violation of the speeding statute of the Vehicle and Traffic Law was an "official function" of which defendant was given sufficient notice to prepare his defense ( see People v Wheeler , 34 NY3d 1134, 1135-1136 [2020] ). Furthermore,
"[i]n light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car.... Consequently, when defendant refused to exit the vehicle, the officer ... had probable cause to arrest defendant for a violation of Penal Law § 195.05" ( People v Williams , 55 Misc 3d 134[A], 2017 NY Slip Op 50478[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], citing People v Garcia , 20 NY3d 317 [2012] ; see People v Graves , 142 AD3d 559 [2016] ).
Because defendant pleaded guilty to the facially sufficient, top count of the accusatory instrument for the 2017 docket, we do not pass upon his now-academic averment that each of the three other charges are facially insufficient ( see People v Anderson , 66 Misc 3d 138[A], 2020 NY Slip Op 50091[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Accordingly, the judgments of conviction are affirmed.
WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.