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People v. Kalin

March 31, 2009

THE PEOPLE & C., APPELLANT,
v.
WILLIAM KALIN, RESPONDENT.



The opinion of the court was delivered by: Graffeo, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

In this appeal, we are asked whether defendant's entry of a guilty plea forfeited his claim that the misdemeanor information was deficient. We answer that question in the affirmative.

In January 2006, defendant William Kalin was a passenger in an automobile that was stopped by a New York City police officer for having a faulty exhaust system. In the course of the traffic stop, the officer recovered what he believed were nine plastic bags of heroin from the vehicle's center console, together with a bag of marijuana and a marijuana pipe from the glove compartment. Defendant and the other occupants of the car were arrested for criminal possession of a controlled substance in the seventh degree and unlawful possession of marijuana.

At his arraignment the next day, defendant pleaded guilty to seventh-degree possession of a controlled substance in return for a sentence of time served. The trial court informed defendant of the rights that he was waiving by entry of his plea, but did not advise defendant that he had the right to be prosecuted by a misdemeanor information rather than a criminal complaint (see CPL 170.65 [1]). During the plea allocution, defendant admitted that he had possessed heroin.

Defendant subsequently appealed, arguing that the accusatory instrument was jurisdictionally defective because it did not satisfy the prima facie case requirement for a misdemeanor information as specified in CPL 100.40. Relying on Matter of Jahron S. (79 NY2d 632 [1992]) and People v Alejandro (70 NY2d 133 [1987]), defendant argued that the police officer's reliance on his experience and training in determining that defendant possessed heroin was insufficient to support the charge of criminal possession of a controlled substance in the seventh degree. The Appellate Term agreed with defendant, reversing the conviction and dismissing the accusatory instrument. A Judge of this Court granted leave, and we now reverse and reinstate the conviction.

The usual instrument filed to obtain jurisdiction over an accused for a misdemeanor offense is a misdemeanor complaint (see CPL 100.05, 100.10 [4]). A complaint contains an accusatory portion that charges the designated offense (see CPL 100.15 [2]) and a factual section that alleges "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]). The factual part of a complaint must establish "reasonable cause" to believe that the defendant committed the charged offense (see CPL 100.40 [4] [b]).

A misdemeanor complaint, however, may not serve as the basis for a prosecution unless the accused expressly waives the right to be prosecuted by a misdemeanor information (see CPL 100.10 [4], 170.65 [1], [3]). Thus, in the absence of such consent, the sufficiency of the accusatory instrument even if it was intended to be a complaint must be evaluated under the standards that apply to an information (see People v Weinberg, 34 NY2d 429, 431 [1974]). In this case, even if the People intended to prosecute defendant using a misdemeanor complaint, the accusatory instrument must be treated as an information for the purpose of assessing its jurisdictional sufficiency because defendant was not informed of his right to be prosecuted on an information and did not waive that protection (see id.).

In addition to the reasonable cause requirement, an information must also set forth "non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" (People v Henderson, 92 NY2d 677, 679 [1999]; see CPL 100.40 [1] [c]). This is referred to as the "prima facie case requirement" (People v Jones, 9 NY3d 259, 262 [2007])*fn1. An information that does not satisfy this standard by failing to allege a complete element of the charged offense is jurisdictionally defective and may be challenged on appeal even though a defendant never raised the alleged insufficiency prior to entering a guilty plea (see e.g. People v Jones, 9 NY3d at 262; People v Casey, 95 NY2d 354, 364 [2000]; People v Alejandro, 70 NY2d at 136)*fn2. 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 NY2d 729, 731 [1986]). Rather, the factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug for example, an officer may allege that the accused made a statement identifying the drug.

Here, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, the elements of which are the knowing and unlawful possession of a controlled substance in the State of New York (see Penal Law § 220.03). In the accusatory instrument, the officer asserted that his "experience as a police officer as well as [his] training in the identification and packaging of controlled substances and marijuana" provided the foundation for his conclusion that he had discovered marijuana and heroin in the vehicle. The Appellate Term, however, believed that under Jahron S., an allegation of this nature is insufficient to establish a prima facie case of drug possession for purposes of an information (as opposed to the complaint that was at issue in Dumas).

The primary issues we considered in Jahron S. were whether the sufficiency of a juvenile delinquency petition was subject to the same legal standards as a misdemeanor information, whether the factual allegations of a juvenile delinquency petition can be supplemented by a supporting deposition and whether facts asserted after a petition is filed can be considered when assessing the sufficiency of the petition. After an analysis that resulted in the first two questions being answered in the affirmative and the third being answered in the negative, it was then necessary for us to consider whether the petition was, in fact, sufficient.

The police officer in Jahron S. submitted a juvenile delinquency petition accompanied by a supporting deposition that stated "he had observed [the] appellant in possession of 33 vials of cocaine in crack form, and that 'based upon [his] training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,' he believed the substance to be crack cocaine" (79 NY2d at 634). In reviewing the sufficiency of the petition, we rejected the accused's argument that a laboratory report is required to establish a prima facie case of drug possession (see id. at 640). This Court also held, in a perfunctory fashion, that the officer's reliance on his experience and training was insufficient to satisfy the prima facie standard (see id.). We now revisit this issue.

A "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v Henderson, 92 NY2d at 680), 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 (see Preiser, Practice Commentary, McKinney's Cons Law of NY, Book 11A, CPL 100.40, at 388). In the years since Jahron S. was decided, we have explained that, "'[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'" (People v Konieczny, 2 NY3d 569, 575 [2004], quoting People v Casey, 95 NY2d at 360).

These core concerns were clearly satisfied in this case. Defendant was on notice that: (1) he was charged with possessing heroin and marijuana discovered in the car in which he was a back-seat passenger at approximately 10:50 P.M. on January 21, 2006 at the corner of Cypress and Myrtle Avenues in Queens; (2) the heroin was contained in nine separate plastic bags in the center console of the vehicle; and (3) the marijuana was found in a "plastic zip lock bag" inside the glove compartment along with a "marijuana pipe containing a quantity of marijuana." Based on these details, defendant could prepare a defense (e.g., he could attempt to demonstrate an actual lack of knowledge that the drugs were in the car to rebut the statutory presumption in Penal Law ยง 220.25 [1]). These facts were also specific enough to allow defendant to invoke the protection of double jeopardy in the event that he was acquitted of these charges but later subject to further prosecution. And, accepting the officer's statements as true, the assertions were enough to inform defendant that the substances seized were heroin and marijuana the officer had been trained ...


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