Opinion
2017-1622 D CR
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Tariq MAHMOOD, Appellant.
William J. Reddy, for appellant. Dutchess County District Attorney (Kirsten A. Rappleyea, of counsel), for respondent.
William J. Reddy, for appellant.
Dutchess County District Attorney (Kirsten A. Rappleyea, of counsel), for respondent.
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is reversed, on the law, the guilty plea is vacated, the accusatory instrument is dismissed and the fine thereon, if paid, is remitted.
In an information charging defendant with criminal possession of marihuana in the fifth degree ( Penal Law § 221.10 [2] ), the police officer alleged, based upon his personal knowledge, that defendant "possess[ed] a substance believed to be marihuana with an aggregate weight of more than 25 grams." On July 19, 1995, defendant pleaded guilty to the lesser included offense of unlawful possession of marihuana ( Penal Law § 221.05 ), in satisfaction of the accusatory instrument. We note that defendant's motion for a writ of error coram nobis to extend the time to take an appeal was granted on September 18, 2017 ( 2017 NY Slip Op 87226[U] ). On appeal, defendant contends that the accusatory instrument is jurisdictionally defective.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v Case , 42 NY2d 98, 99 [1977] ; see also People v Dumay , 23 NY3d 518, 522 [2014] ; People v Dreyden , 15 NY3d 100, 103 [2010] ). Here, since defendant did not waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern the sufficiency of an information (see People v Hatton , 26 NY3d 364, 368 [2015] ; People v Kalin , 12 NY3d 225, 228 [2009] ; see also CPL 100.15 ; 100.40 [1] ). While the law does not require that an accusatory instrument contain the most precise words or phrases most clearly expressing the charge, the offense and factual basis therefor must be sufficiently alleged (see People v Konieczny , 2 NY3d 569, 575 [2004] ). "So 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" ( People v Casey , 95 NY2d 354, 360 [2000] ; see Konieczny , 2 NY3d at 575 ). Defendant raises no hearsay claim on appeal, and, even if he had, the claim would have been waived by his failure to raise it in the Criminal Court (see Casey 95 NY2d 354 ).
The factual allegations of an information charging criminal possession of marihuana in the fifth degree "must establish the basis of the arresting officer's belief that the substance seized was ... illegal" ( People v Kalin , 12 NY3d at 229 ). Here, absent from the information were any facts relied upon by the officer in reaching the conclusion that the substance seized was marihuana (see People v Justesen , 30 Misc 3d 38 [App Term, 2d Dept, 9th & 10th Jud Dists 2010] [the information merely alleged, conclusorily, that defendant possessed 4.7 grams of marihuana]; cf. People v Smalls , 26 NY3d 1064, 1067 [2015] [in addition to his training and experience, 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]; People v Kalin , 12 NY3d at 230-231 [in addition to his training and experience, the officer relied upon the packaging of the substance and the recovery of a marihuana pipe in reaching the conclusion that the substance was marihuana]; Matter of Angel A. , 92 NY2d 430, 433 [1998] [in addition to his training and experience, the officer relied upon an "NIK" field test in reaching the conclusion that the substance was heroin]; People v Pearson , 78 AD3d 445 [2010] [concluding that a beige powdery substance contained in eight glassines was heroin, based on the officer's training and experience, including training in the recognition of controlled substances, and their packaging] ). Consequently, the information is jurisdictionally defective.
Accordingly, the judgment of conviction is reversed, the guilty plea is vacated and the accusatory instrument is dismissed.
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.