Opinion
No. 2012–1389 RI CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Michael PRICE, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered April 11, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree. The appeal from the judgment of conviction brings up for review an order of the same court dated February 8, 2012 (op 35 Misc.3d 1203[A], 2012 N.Y. Slip Op 50548[U] ) denying defendant's motion to dismiss the accusatory instrument as facially insufficient.
ORDERED that the judgment of conviction is affirmed.
Defendant, who was charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) for the possession of 14 oxycodone pills, a schedule II controlled substance (Public Health Law § 3306), moved to dismiss the accusatory instrument as facially insufficient, and the People opposed the motion. The Criminal Court, in a written decision (op 35 Misc.3d 1203[A], 2012 N.Y. Slip Op 50548[U] ), denied defendant's motion, finding that the instrument was facially sufficient. Thereafter, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, as charged, and was sentenced to a conditional discharge. On appeal, defendant again challenges the accusatory instrument's facial sufficiency, contending that it did not allege that it was unlawful for him to have possessed the oxycodone pills in that he did not have a valid prescription for them.
At the outset, we note that defendant's argument concerning the 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 ). As defendant, through his counsel, expressly waived his right to be prosecuted by information (cf. People v. Kalin, 12 NY3d 225 2009; People v. Weinberg, 34 N.Y.2d 429 1974 ), the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518 2014 ). A misdemeanor complaint, together with any supporting depositions, is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charges (CPL 100.153 ) and provides reasonable cause to believe that the defendant committed the offenses charged (CPL 100.404[b]; see People v. Dumas, 68 N.Y.2d 729, 731 1986 ). Moreover, so long as the factual allegations of an accusatory instrument provide “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. Kalin, 12 NY3d at 230; quoting People v. Konieczny, 2 NY3d at 575; see People v. Dumay, 23 NY3d at 524).
Pursuant to Penal Law § 220.03, “[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance.” Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement (see People v. Dumas, 68 N.Y.2d at 731). However, a laboratory report is not required to accompany an accusatory instrument charging a defendant with criminal possession of a controlled substance in the seventh degree for it to be facially sufficient (see People v. Kalin, 12 NY3d at 231; Matter of Jahron S., 79 N.Y.2d 632, 640 1992; People v. Pearson, 78 AD3d 445 2010 ). Rather, an accusatory instrument charging possession of a controlled substance can be sufficient so long as the factual allegations therein establish the basis of the arresting officer's belief that the substance seized was a particular type of controlled substance (see People v. Kalin, 12 NY3d at 229; People v. Dumas, 68 N.Y.2d at 731). We find that the accusatory instrument, together with the supporting deposition herein, not only identified the particular controlled substance defendant allegedly possessed, but also stated, based on the arresting officer's familiarity and training in the identification of controlled substances, and based on the markings contained on the pills, why the officer concluded that the substance recovered was oxycodone (see People v. Dumas, 68 N.Y.2d at 729; cf. People v. Kalin, 12 NY3d at 229–231). These sworn allegations by the arresting officer sufficiently established the basis for his belief that defendant was in possession of oxycodone, a controlled substance (see People v. Chao, 39 Misc.3d 148[A], 2013 N.Y. Slip Op 50941[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Oliver, 31 Misc.3d 130[A], 2011 N.Y. Slip Op 50581[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Furthermore, the accusatory instrument was facially sufficient even though it did not allege that it was unlawful for defendant to have possessed the oxycodone pills in that he did not have a valid prescription for them (see People v. Torres, 47 Misc.3d 24 [App Term, 2d, 11th & 13th Jud Dists 2015]; see also People v. Lobianco, 2 Misc.3d 419 [Crim Ct, Kings County 2003] ).
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.