SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
May 9, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Jacqueline Williams, J.), rendered August 14, 2008. The judgment convicted defendant, upon her plea of guilty, of disorderly conduct.
People v Murphy (Kashanna)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2011
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a felony complaint with failure to disclose the origin of a recording in the first degree (Penal Law § 275.40 ) and failure to disclose the origin of a recording in the second degree (Penal Law § 275.35). Thereafter, the felony complaint was reduced to a misdemeanor information, and the top count of failure to disclose the origin of a recording in the first degree was dismissed. Subsequently, defendant appeared with counsel and entered a plea of guilty to the offense of disorderly conduct (Penal Law § 240.20) in satisfaction of the instrument. The sole contention raised by defendant on this appeal is that the information is jurisdictionally defective.
At the outset, we note that defendant's arguments concerning the information's facial sufficiency are jurisdictional (see People v Alejandro, 70 NY2d 133 ). Thus, defendant's claim was not forfeited upon her plea of guilty (see People v Konieczny, 2 NY3d 569, 573 ; see also People v Lucas, 11 NY3d 218, 220 ) and must be reviewed in spite of her failure to raise it in the Criminal Court (see People v Kalin, 12 NY3d 225, 229 ; People v Alejandro, 70 NY2d 133).
The information is facially sufficient as it contains factual allegations which provide reasonable cause to believe that defendant committed the offense of failure to disclose the origin of a recording in the second degree and, if true, establish every element thereof (see CPL 100.40  [b], [c]). The allegations are also sufficiently evidentiary, as well as adequately detailed, to enable defendant to prepare a defense and to prevent her reprosecution for the same crime (see People v Dreyden, 15 NY3d 100 ; People v Kalin, 12 NY3d at 230).
A person is guilty of failure to disclose the origin of a recording in the second degree when the person knowingly advertises or offers for sale, resale, or rental a recording which "does not clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist" (Penal Law § 275.35).
The factual allegations establish that defendant was observed behind the counter of the Spotlight Variety Store, surrounded by CDs, and that a total of 3,200 CDs were recovered from the store. Defendant's proximity to the CDs showed that she exercised control over them (see People v Manini, 79 NY2d 561, 572-573 ), and thus constructively possessed them. Her knowledge of the nature of the CDs may be inferred from her possession (see People v Diaz, 15 NY3d 764,765-766 , citing People v Reisman, 29 NY2d 278, 285 ). Consequently, defendant's presence behind the counter (see generally People v Ran Yang, 23 Misc 3d 1117[A], 2009 NY Slip Op 50793[U] [Crim Ct, NY County 2009]), the large quantity of CDs recovered and their location in a commercial premises demonstrate the offer for sale element (see People v Kane, 14 Misc 3d 283 [Crim Ct, NY County 2006]; People v Cisse, 171 Misc 2d 185, 189 [Crim Ct, Queens County 1996]). Moreover, the recording expert's observations that the subject CDs "list unfamiliar company names, or list no names at all" are sufficiently "evidentiary" (see CPL 100.15 ; People v Kalin, 12 NY3d at 231) and satisfied the failure-to-disclose element of the offense (see People v Santiago, 9 Misc 3d 197, 199 [Crim Ct, NY County 2005]).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: May 09, 2011
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