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The People of the State of New York v. Robert Bracy

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
ROBERT BRACY,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ira H. Margulis, J.), rendered October 14, 2008.

People v Bracy (Robert)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 1, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The judgment convicted defendant, upon his plea of guilty, of resisting arrest.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor complaint with resisting arrest (Penal Law § 205.30) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). At his arraignment, defendant waived his right to be prosecuted by information and pleaded guilty to resisting arrest. On appeal, defendant contends that the misdemeanor complaint is jurisdictionally defective.

We note that a challenge to the facial sufficiency of an accusatory instrument based on non-waivable jurisdictional defects is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225 [2009]; People v Konieczny, 2 NY3d 569 [2004]). A misdemeanor complaint is sufficient on its face when it alleges " facts of an evidentiary character' (CPL 100.15 [3]) demonstrating reasonable cause' to believe the defendant committed the crime charged (CPL 100.40 [4] [b])" (People v Dumas, 68 NY2d 729, 731 [1986]). With regard to a charge of criminal possession of a controlled substance in the seventh degree, in order to meet the "reasonable cause" requirement, the factual allegations of the misdemeanor complaint must provide the basis of the police officer's conclusion that the substance recovered was an illegal drug (see People v Dreyden, 15 NY3d 100; People v Dumas, 68 NY2d at 731; see generally People v Kalin, 12 NY3d at 229).

The complainant police officer alleged in the misdemeanor complaint that he had been informed by a detective that she had "observed" cocaine in defendant's hand. The police officer further stated that "his conclusion that the substance recovered . . . is cocaine [is] based upon his experience as a police officer and in his training in the identification and packaging of controlled substances." The officer then stated that he had further been informed by the detective that defendant had flailed his arms and had knocked the detective to the ground when she had tried to arrest him. Defendant contends that there was no criminal possession of a controlled substance, and no authorized arrest, since the foregoing averments fail to allege facts of an evidentiary character to support the conclusion that the observed and recovered substance was cocaine. We disagree.

"[A]n accusatory instrument must be given a reasonable, not overly technical reading . . ." (People v Konieczny, 2 NY3d at 576). When the misdemeanor complaint herein is given such a reading, the "fair implication" (People v Casey, 95 NY2d 354, 360 [2000]) of its averments support, or tend to support, the charge of criminal possession of a controlled substance in the seventh degree. It can be inferred that the complainant officer examined the recovered substance and that, based on his delineated experience (see People v Dreyden, 15 NY3d 100; People v Kalin, 12 NY3d at 229; People v Dumas, 68 NY2d at 731), he determined that the substance recovered from defendant was cocaine. In view of the foregoing, the misdemeanor complaint 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.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: April 01, 2011

20110401

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