Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander B. Jeong, J.), rendered December 14, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.
Decided on February 16, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 16, 2011
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ) in satisfaction of an accusatory instrument charging that offense as well as unlawful possession of marihuana (Penal Law § 221.05). He now challenges the facial sufficiency of the count under which he pleaded guilty.
The accusatory instrument is not denominated a misdemeanor complaint or an information. Since defendant waived prosecution by information, we treat the accusatory instrument as a misdemeanor complaint (cf. People v Kalin, 12 NY3d 225, 228 ).
Defendant argues that the accusatory instrument does not meet the facial sufficiency requirements of CPL 100.15 (3) and 100.40 (4). More specifically, he argues that it does not provide "facts of an evidentiary character" (CPL 100.15 ) "provid[ing] reasonable cause to believe" (CPL 100.40  [b]) that he committed the charged offense.
Penal Law § 221.10 (1) provides, in relevant part: "A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: 1. marihuana in a public place . . . and such marihuana is . . . open to public view . . ." The accusatory instrument alleges, in relevant part, that the police officer informant "observed the defendant on a sidewalk which is a public place, and in possession of a quantity of marihuana which was open to public view and which informant recovered from coat pocket." Defendant contends that the phrase "open to public view" is "conclusory" (People v Dumas, 68 NY2d 729, 731 ) as opposed to "evidentiary" (CPL 100.15 ; see People v Dumas, 68 NY2d at 731).
We reject defendant's contention. "[A]n accusatory instrument must be given a reasonable, not overly technical reading . . ." (People v Konieczny, 2 NY3d 569, 576 ). When the accusatory instrument here is given such a reading, the "fair implication" (People v Casey, 95 NY2d 354, 360 ) of the allegation at issue is that the basis for the police officer informant's conclusion that the marihuana was "open to public view" (Penal Law § 221.10 ) was the officer's own ability to observe the marihuana as defendant stood on the sidewalk. The allegation is therefore adequate (see generally People v Jackson, 26 Misc 3d 133[A], 2010 NY Slip Op 50092[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2010] [phrase "visible to a passerby" is not "conclusory"]; cf. People v Dreyden, 15 NY3d 100 ). We note that, although the accusatory instrument alleges that the marihuana was ultimately recovered from defendant's pocket, this allegation does not undermine the allegation that the marihuana had been "open to public view." Hence, the accusatory instrument is not jurisdictionally defective, and, "[c]onsequently, defendant's challenge to the [accusatory instrument] was forfeited by operation of law upon his entering a guilty plea" (People v Kalin, 12 NY3d at 232 [citation omitted]).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: ...