Criminal Court of the City of New York, New York County
Assistant District Attorney Shilpa Kalra
Lawrence A. Omansky, Esq.
ERIKA M. EDWARDS, J.
The defendant, Larry Ramirez, is charged with violating PL §205.30 (Resisting Arrest); and PL §221.40 (Criminal Sale of Marihuana in the Fourth Degree). Defendant now moves by omnibus motion filed on July 18, 2013, for an order dismissing both counts of the accusatory instrument as facially insufficient pursuant CPL §§100.40, 170.30(1)(a) and 170.35(1), as well as other relief. The court directed the People to file and serve their response to defendant's motion by August 22, 2013. To date, the People have failed to file and serve any opposition to defendant's motion. However, the court will address the issues on the merits.
As set forth below, defendant's motion to dismiss for facial insufficiency is granted in part as to the charge of Criminal Sale of Marihuana in the Fourth Degree and denied in part as to the Resisting Arrest count; defendant's request for a Bill of Particulars is denied; defendant's request for additional discovery is granted to the extent that the People are required to file and serve a Voluntary Disclosure Form on or before October 15, 2013; defendant's motion to suppress any prior conviction and bad acts is reserved for the trial court; and the court grants Huntley/Wade/Dunaway hearings to determine the outcome of defendant's motion to suppress defendant's post-arrest statement(s) and identification testimony.
MOTION TO DISMISS FOR FACIAL INSUFFICIENCY
A defendant may, at any time, properly raise a claim of facial insufficiency resulting from a failure to allege a necessary element and such defect is jurisdictional, non-waivable and may even be raised on appeal (People v Casey, 95 N.Y.2d 354, 364 ).
A valid accusatory instrument must include a factual portion containing a complainant's statement "alleging facts of an evidentiary character supporting or tending to support the charges" (CPL §100.15). Each count of a misdemeanor complaint is sufficient on its face when it "substantially conforms" to the requirements set forth in CPL §100.15 and the allegations in the factual portion of the accusatory instrument and/or any supporting deposition(s) "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument" (CPL §100.40[a] and [b] and People v Dumas, 68 N.Y.2d 729, 731 ).
Furthermore, a valid criminal court information must contain non-hearsay factual allegations in the complaint and/or any supporting deposition(s), which, if true, establish "every element of the offense charged and the defendant's commission thereof" (CPL §100.40[c]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, however such standard does not require the same level of corroboration needed at trial or in grand jury proceedings (People v Suber, 19 N.Y.3d 247, 252-54 ).
A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement (People v Kalin, 12 N.Y.3d 225, 229 ). The information must also set forth the individual's basis of knowledge to support the factual allegation (id.). That other innocent inferences could possibly be drawn from the facts is irrelevant to this inquiry at the pleading stage (People v Deegan, 69 N.Y.2d 976, 979 ).
In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense..., " the court should give it "a fair and not overly restrictive or technical reading" (Casey, 95 N.Y.2d at 360). At the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 N.Y.2d 378, 385 ).
The factual allegations set forth in the complaint state in substance that Detective Franklyn Sepulveda was informed by undercover Police Officer 00229, that on June 13, 2013, at 6:18 p.m. at 600 West 161st Street, New York, New York, Miguel Alejo (a separately-charged individual) gave the undercover officer a plastic bag of marihuana in exchange for money. Detective Sepulveda was informed by Detective Angel Daliz that Detective Daliz examined the contents of the plastic bag and believed it contained marihuana based upon his training, experience and observation of the packaging. Additionally, Detective Sepulveda was informed by Sergeant Kevin Goggin that Sergeant Goggin observed Miguel Alejo "hand this defendant money as a part of the above-mentioned transaction "with the undercover officer (emphasis added).
Thereafter, as Detective Sepulveda attempted to place the defendant under arrest, the defendant ran away from the detective for approximately 1 ½ city blocks and refused to be handcuffed. As a result of the defendant's actions in avoiding arrest, Detective Sepulveda fell to the ground and sustained injuries to his forehead and knee.
The People filed and served supporting depositions from Undercover 00229, Detective Daliz, and Sergeant Goggin to convert the complaint to an information.
In defendant's motion papers, he argues in substance that the information is facially insufficient because it fails to make out a prima facie showing that the defendant committed the crimes charged against him. Defendant alleges in substance that he was simply walking down the street when he saw his friend, Miguel Alejo, the separately-charged individual. Defendant asked his friend if he could buy three cigarettes from him and his friend agreed to sell them to him. Defendant handed his friend $3.00 in exchange for three cigarettes. As defendant walked away, the police stopped him and arrested him. Defendant denies being a part of any marijuana sale. He argued in substance that the ...