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The People of the State of New York v. James Oliver

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.
JAMES OLIVER,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Joseph E. Gubbay, J.), rendered April 12, 2009.

People v Oliver (James)

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and STEINHARDT, JJ

The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged, in an accusatory instrument not denominated as either a misdemeanor complaint or an information, with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and pleaded guilty to disorderly conduct (Penal Law § 240.20). He now contends that the accusatory instrument does not meet the facial sufficiency requirements of CPL 100.15 (3) and 100.40 (1) (c).

Since defendant never waived his right to be prosecuted by information, the accusatory instrument must be evaluated against the standards for an information as set forth in CPL 100.15 (3) and 100.40 (1) (c) (see People v Kalin, 12 NY3d 225, 228 [2009]), except for the non-hearsay requirement, which defendant forfeited when he pleaded guilty (see id. at 232; People v Keizer, 100 NY2d 114, 123 [2003]).

In order for an information to be facially sufficient, the information (and/or its supporting depositions) must allege facts of an evidentiary character . . ." (CPL 100.15 [3]) that establish, if true, every element of the offense charged . . ." (CPL 100.40 [1] [c]; see People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731). Hence, defendant's claim must be reviewed by this court as a question of law (see CPL 470.05 [2]) despite defendant's failure to raise it in the Criminal Court (see People v Alejandro, 70 NY2d 133), and the claim was not forfeited by defendant's guilty plea (see People v Lucas, 11 NY3d 218, 220 [2008]; People v Konieczny, 2 NY3d 569, 573 [2004]).

The New York Court of Appeals has held an information alleging criminal possession of a controlled substance in the seventh degree is sufficient when it: "(1) adequately identifies the particular drug, (2) alleges that the accused possessed that illegal substance, (3) states the officer's familiarity with and training regarding the identification of the drug, (4) provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and (5) supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (People v Kalin, 12 NY3d at 231-232).

In this case, the complainant police officer alleged in the accusatory instrument, among other things, that defendant was being charged with criminal possession of a controlled substance in the seventh degree based on the sworn statement of a fellow officer who had observed defendant in front of a specified address in possession of a quantity of heroin which [the fellow officer had] recovered from the ground where [he had] observed defendant drop it." The complainant further stated that she had been informed that the fellow police officer: "has had professional training as a police officer in the identification of heroin, has previously made arrests for criminal possession heroin . . . by professional training as a police officer [is] familiar with the common methods of packaging heroin and the glassine envelope used to package the heroin in this case is a commonly used method of packaging heroin." Thus, the allegations contained in the information establish[ed], if true" (CPL 100.40 [1] [c]), every element of the offense of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03; People v Kalin, 12 NY3d at 229, 231-232).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: April01, 2011

20110401

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