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People v. Newton

Criminal Court of the City of New York, New York County

August 31, 2017

The People of the State of New York, Plaintiff,
v.
Mujeddid M. Newton, Defendant.

          For the Defendant: John D. McBride, Esq.,

          Of Counsel to Seymour W. James, Esq. The Legal Aid Society Criminal Defense Practice

          For the People: A.D.A. Priam Singh.

          Of Counsel to Cyrus R. Vance, Jr. New York County District Attorney

          DAVID FREY, J.

         The defendant is charged with one count each of Unlawfully Possessing or Selling Noxious Material (PL 270.05[2]) and Harassment in the Second Degree (PL 240.26[1]). The People served and filed a supporting deposition on June 8, 2017. The defendant, in an omnibus motion dated June 22, 2017, seeks: (1) to dismiss the information as facially insufficient pursuant to CPL 710.20(1) and CPL 170.30, (2) a Huntley / Dunaway hearing, (3) a Wade hearing, (4) an order to compel a Bill of Particulars and discovery, (5) Sandoval and Molineux hearings, (6) preservation of evidence, and (7) reservation of rights. The People filed their motion response, a Voluntary Disclosure Form (VDF), and a cross-motion for reciprocal discovery on July 28, 2017.

         The defendant's omnibus motion is decided as follows:

         FACIAL SUFFICIENCY

         Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15; the allegations provide reasonable cause to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. "So 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, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]).

         Penal Law (PL) 270.05(2) provides that, "A person is guilty of unlawfully possessing noxious material when he possesses such material under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace." "Noxious material" is defined as, "any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person" (PL 270.05[1]).

         In the misdemeanor complaint, the police officer alleged that,

Ms. Pichardo informed me she observed the defendant throw a plastic bag toward her that landed in the entrance to the apartment near her. I am further informed by Ms. Pichardo that she observed a firm object inside the bag and a strong odor emanating from the bag consistent with fecal matter. I am further informed by Ms. Pichardo that defendant's above described actions caused her to feel alarmed and annoyed.

         Ms. Pichardo's supporting deposition confirmed this account.

         The defendant contests the information's facial sufficiency, contending that fecal matter is not a noxious material, and the instrument is not converted ...


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