Opinion
2021-50545
06-11-2021
The People of the State of New York, Respondent, v. Giovanni Fernandez, Defendant-Appellant.
Unpublished Opinion
PRESENT: McShan, J.P., Brigantti, Hagler, JJ.
PER CURIAM.
In consolidated criminal appeals, defendant appeals from four judgments of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered January 25, 2016, convicting him, upon his pleas of guilty, of resisting arrest and three counts of disorderly conduct, and imposing sentence.
Judgments of conviction (Laurie Peterson, J.), rendered January 25, 2016, affirmed.
In view of defendant's knowing waiver of the right to prosecution by information, the underlying accusatory instruments only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]). So viewed, the complaint charging criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) under docket number 2015NY056292 was not jurisdictionally defective. The complaint "supplied the basis" (People v Smalls, 26 N.Y.3d 1064, 1067 [2015], quoting People v Kalin, 12 N.Y.3d 225, 231 [2009]) for the arresting officer's contention that the "pipe" recovered from defendant's hand contained crack cocaine residue. The instrument recited that the officer had the requisite training and experience in identifying drugs, and that he reached his conclusion about the nature of the substance based on his "observation of the packaging which is characteristic of crack/cocaine" (see People v Kalin, 12 N.Y.3d at 231232). Where, as here, "the defendant has waived prosecution by information (and therefore has assented to the more lenient reasonable cause standard), these legal and factual allegations are sufficient to particularize the crime charged and protect against a constitutional double jeopardy violation" (People v Thiam, 34 N.Y.3d 1040, 1044 [2019, DiFiore, Ch. J., concurring]).
For similar reasons, the complaint charging resisting arrest (see Penal Law § 205.30) under docket number 2016NY003795 was not jurisdictionally defective. The authorized arrest element of resisting arrest was sufficiently charged by way of allegations establishing probable cause to arrest defendant for criminal possession of a controlled substance in the seventh degree (see People v Grier, 47 A.D.3d 729 [2008], lv denied 10 N.Y.3d 863 [2008]; People v Campbell, 67 Misc.3d 144 [A], 2020 NY Slip Op 50763[U] [App Term, 1st Dept 2020], lv denied 35 N.Y.3d 1093 [2020]). The instrument recited that the officer recovered a bag and two "crack pipes" containing crack cocaine, which substance he identified based on his "professional training as a police officer in the identification of drugs, [his] prior experience as a police officer in drug arrests and [his] observation of the packaging which is characteristic of crack cocaine."
The complaint charging unauthorized use of a vehicle in the third degree (see Penal Law § 165.05[1]) and criminal mischief in the fourth degree (see Penal Law § 145.00[1]) under docket number 2015NY072645 was not jurisdictionally defective. The complaint recited that defendant was observed "operat[ing]" the vehicle of complainant, without "permission or authority" from the complainant, the lawful custodian of the car and that defendant caused "a dent to the front bumper" (see People v Johnson, 123 A.D.3d 631 [2014], lv denied 25 N.Y.3d 1203 [2015]; Matter of Carlos M., 32 A.D.3d 686 [2006]).
We also find unavailing defendant's challenge to the facial sufficiency of the complaint under docket number 2016NY002690. Allegations that defendant entered a specified subway station "beyond the turnstiles, which is an area enclosed by turnstiles and gates in a manner designed to exclude those who do not pay the required fare, without permission or authority to do so, by walking through an exit gate," established reasonable cause to believe that he committed theft of services (see People v Borrero, 26 N.Y.2d 430 [1970]; Matter of Kevin B., 128 A.D.2d 63, 70 [1987], affd sub nom. Matter of Timothy L., 71 N.Y.2d 835 [1988]) and criminal trespass in the third degree (see People v Davion T., 61 Misc.3d 144 [A], 2018 NY Slip Op 51672[U] [App Term, 1st Dept 2018], lv denied 32 N.Y.3d 1170 [2019]).