Opinion
No. 2011–00478 QCR.
2014-07-24
The PEOPLE of the State of New York, Respondent, v. Lawrence DESANTIS, Appellant.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered January 18, 2011. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with criminal mischief in the fourth degree (Penal Law § 145.00[1] ) and petit larceny (Penal Law § 155.25). The factual portion of the information, which was affirmed by a detective, alleged that he was informed by the owner of a vehicle that, on or about August 29, 2009, at 7:40 a.m., the owner had parked his car at the northeast intersection of 225th Street and 141st Road, in the County of Queens, and, when he had returned at around 3:00 p.m., he had observed that the front passenger window was shattered and the radio speakers, amplifier, and Ipod were missing from inside the passenger's compartment of the vehicle and the vehicle's trunk. The detective further alleged in the information that he had obtained business records of a police officer from the NYPD Queens South Evidence Collection Team, who had observed blood on the rear bumper of the car, and the records stated that the officer had swabbed the area and submitted the swab for DNA testing. The detective also alleged in the information that he had obtained business records of a criminologist with the Office of the Chief Medical Examiner and that these records demonstrated that the testing had revealed a single source DNA profile which matched that of defendant, who had previously submitted an oral swab from which his known DNA profile had been developed and thereafter entered into the New York State DNA Index System. On January 18, 2011, defendant, through his counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20), a violation, in full satisfaction of the charges. Defendant was sentenced to 15 days' incarceration. On appeal, defendant challenges the accusatory instrument's facial sufficiency, contending that the allegations contained therein were insufficient to establish reasonable cause to believe that he had committed the offenses charged.
At the outset, we note that a challenge to an accusatory instrument's facial sufficiency is jurisdictional ( see People v. Alejandro, 70 N.Y.2d 133 [1987] ). Thus, defendant's claim was not forfeited upon his plea of guilty ( see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 573 [2004] ). A facially sufficient information must contain nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and must provide reasonable cause to believe that the defendant committed the offenses charged (CPL 100.15[3]; 100.40[1]; see People v. Casey, 95 N.Y.2d 354 [2000]; Alejandro, 70 N.Y.2d 133; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). Furthermore, “[s]o 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” ( Casey, 95 N.Y.2d at 360).
The prima facie case requirement for determining the facial sufficiency of an accusatory instrument “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” ( People v. Kalin, 12 NY3d 225, 230 [2009]; see also People v. Henderson, 92 N.Y.2d 677, 680 [1999] ). Moreover, reasonable cause exists “when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ). The Court of Appeals equates the standard to establish reasonable cause with that of probable cause to arrest ( see People v. Maldonado, 86 N.Y.2d 631, 635 [1995]; People v. Johnson, 66 N.Y.2d 398, 402 [1985] ). Probable cause determinations require that the “articulated, objective facts” and “the reasonable inferences to be drawn therefrom” ( People v. Mercado, 68 N.Y.2d 874, 877 [1986] ) suffice to “lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed” ( People v. McRay, 51 N.Y.2d 594, 602 [1980]; see also People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ). While “conduct equally compatible with guilt or innocence will not suffice” ( Carrasquillo, 54 N.Y.2d at 254), it is not necessary that all conceivable innocent explanations for the accused's conduct be eliminated ( see e.g. People v. Omowale, 83 AD3d 614, 618 [2011]; People v. Thompson, 43 Misc.3d 137[A], 2014 N.Y. Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ).
As the information alleged a DNA match, the information was sufficient under the circumstances to establish that it was reasonably likely that defendant had committed the crimes charged therein. It was permissible to draw reasonable inferences from the fact that defendant's blood was found on the car in question, which had a shattered window, and it was not necessary that all conceivable innocent explanations, such as with respect to how and when defendant's blood got onto the rear bumper of the car, be eliminated. Therefore, since reasonable cause determinations are governed by “a flexible common-sense standard” ( People v. Batista, 261 A.D.2d 218, 221 [1999] [internal quotation marks omitted] ), we are satisfied that the factual allegations contained in the information were sufficient, for pleading purposes, to establish that reasonable cause existed to believe that defendant had committed the offenses charged.
Defense counsel further contends that the plea allocution was insufficient but requests that this court reverse the judgment of conviction only if it also determines, as a matter of discretion in the interest of justice, to dismiss the accusatory instrument, rather than to remit the matter for all further proceedings, as defendant “has not indicated that he is willing to risk taking his plea back.” In accordance with counsel's request, we do not reach the issue of the sufficiency of the plea allocution since it cannot be said that, upon a reversal of the judgment of conviction on that ground, no penological purpose would be served by remitting the case for further proceedings ( cf. People v. Mack, 39 Misc.3d 149[A], 2013 N.Y. Slip Op 50943[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Facey, 30 Misc.3d 138[A], 2011 N.Y. Slip Op 50224 [U] [App Term, 2d, 11th & 13th Jud Dists 2011] ), and, as a result, we would not dismiss the accusatory instrument in the interest of justice.
Accordingly, the judgment of conviction is affirmed.