Supreme Court of New York, 2nd, 11th and 13th Judicial Districts
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Shulamit Rosenblum Nemec of counsel), for respondent.
[969 N.Y.S.2d 716]Steven Banks, Legal Aid Society, New York City (Jonathan Garelick of counsel), for appellant.
PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered March 26, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
Defendant was charged, in a misdemeanor complaint, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ) and unlawful possession of marihuana (Penal Law § 221.05). He waived prosecution by information and pleaded guilty to criminal possession of marihuana in the fifth degree in satisfaction of the accusatory instrument. He now challenges the facial sufficiency of the count of the accusatory instrument charging him with criminal possession of marihuana in the fifth degree.
At the outset, we note that defendant's arguments concerning the accusatory instrument's facial sufficiency are jurisdictional ( see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71  ). Thus, defendant's
claim was not forfeited upon his plea of guilty ( see People v. Dreyden, 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; People v. Konieczny, 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; see also People v. Lucas, 11 N.Y.3d 218, 220, 868 N.Y.S.2d 570, 897 N.E.2d 1052  ) and must be reviewed in spite of his failure to raise it in the Criminal Court ( see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (CPL 100.15 ) and provides reasonable cause to believe that defendant committed the crime charged (CPL 100.40[b]; see People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686  ). " [A]n accusatory instrument must be given a reasonable, not overly technical reading" ( People v. Konieczny, 2 N.Y.3d at 576, 780 N.Y.S.2d 546, 813 N.E.2d 626).
Defendant pleaded guilty to Penal Law § 221.10(1), which provides, in relevant part, that " [a] person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses ... marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view." Defendant now appeals, claiming that the misdemeanor complaint insufficiently alleges that the marihuana was " open to public view." Specifically, the misdemeanor complaint states, in relevant part, that
" the [arresting officer] observed the defendant on a roadway which is a public place, and in possession of a quantity of marihuana which was open to public view and which [the arresting officer] recovered from on [ sic ] back seat of motor vehicle defendant was sitting in."
We agree with defendant that these allegations are insufficient to support a charge of criminal possession of marihuana in the fifth degree. Other than the arresting officer's conclusory assertion that the marihuana was open to public view, nothing in the accusatory instrument supports the inference " that any other member of the public could also have seen the marihuana from the same vantage point" [969 N.Y.S.2d 717]( People v. Jackson, 18 N.Y.3d 738, 748, 944 N.Y.S.2d 715, 967 N.E.2d 1160  ). The fact that the marihuana was " recovered" from the " back seat" of the vehicle does not suggest that it would have been visible to a passerby ( compare id. [allegations that officer smelled a strong odor of marihuana emanating from vehicle and saw defendant holding a bag of marihuana in his hand are sufficient to support an inference that members of the public could have seen the marihuana from outside the car] ).
Contrary to the dissenting opinion, the accusatory instrument here fails to contain any language or affirmative allegation that the officer ...