Tag: Criminal Possession of Marihuana in the Fifth Degree

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Dismissed. Even though the Defendant pled guilty at the trial level, he appeals raising the defense that the accusatory instrument was facially insufficient.  The People charged defendant, in an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]), to which the People alleged was in “a public place open to public view,” and that one of the officers had “recovered five ziplock bags of marihuana from the defendant’s left jacket sleeve.” On appeal, defendant contends that the accusatory instrument was facially insufficient and the Court agrees.

A ” valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” (People v Afilal, 26 NY3d 1050, 1051 [2015], quoting People v Case, 42 NY2d 98, 99 [1977]), the right to which is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]). As the record does not reveal that defendant waived prosecution by information (see People v Dumay, 23 NY3d 518, 522 [2014]), the standards of review of the sufficiency of the accusatory instrument are those applicable to informations (see CPL 100.40 [1]; 170.65 [1], [3]; People v Jackson, 18 NY3d 738, 741 [2012]; see also People v Kalin, 12 NY3d 225, 228 [2009]). The purpose of an information is to “ensure[] that a legally sufficient case can be made against the defendant” (Dumay, 23 NY3d at 522). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant’s commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133, 136-137 [1987]), although by pleading guilty, defendant forfeited any challenge to hearsay defects in the information (People v Keizer, 100 NY2d 114, 121 [2003]; People v Kwas, 52 Misc 3d 52, 53 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Even affording the instrument the required “fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]), we find that the factual portion thereof fails to establish every element of the offense.

The Court notes that there is no definition in the Penal law for either “public place” or  “open to public view” elements. What do the Courts utilize here to make that decision? A legal conclusion will not suffice:

While the mere designation of an interior of a premises does not preclude “public place” status, since “hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence” are public places as defined in Penal Law § 240.00 (1) (see Penal Law § 221.10), there are no facts alleged to support an inference that 15-02 Mott Avenue is a public place or, if it is a premises in the nature of a dwelling containing public areas such as a hallway or lobby, that defendant was observed in a portion thereof that did not “constitute rooms or apartments designed for actual residence,” and that his possession of the marihuana in that public place was open to public view (compare People v Oquendo, 39 Misc 3d 70, 71-72 [App Term, 1st Dept 2013] [observation of the defendant “inside” an identified street address, described as “a public place” in possession of marihuana, sufficient given the factual allegations that the defendant’s conduct had “caused a crowd . . . to gather,” which sufficed to plead that the possession occurred in “a common area of the building”], with People v Sherman, 24 Misc 3d 344, 350 [Crim Ct, NY County 2009] [allegation that the defendant possessed marihuana “at a particular address” insufficient because the accusatory instrument did not otherwise “identify the nature of the location . . . for example, whether the location is a business or residence, such as an apartment house . . . [and w]hile hallways and lobbies of apartment houses are public places, there are no facts from which to infer that the possession occurred in a hallway or lobby of an apartment house”]).

Those charged with the criminal possession of marijuana should be aware that a simple conclusion by a police officer will not suffice. A description of what was a public place and what is public view must be sufficiently alleged by the People otherwise the accusatory instrument will be insufficient. Here it results in dismissal even after a plea of guilty.

The case is  People v Brown (Demitrice) 2017 NY Slip Op 50143(U) (App. Term Second Department, January 24, 2017).

New York Marijuana Arrests are especially high in New York City. Smoking pot in public. Usually the defendant was smoking in a park or had the unique scent of marijuana emanating from their possessions before the New York City Police intervene. In People v. Velez, 2015CN008005, NYLJ 1202765159918, at *1 (Crim., NY, Decided August 12, 2016), the Defendant was charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law §221.05). As is often the predicate of a great many arrests, stops, searches, seizures and sometimes frisks, the New York City Police Officers swore that

“I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it. I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant’s pocket. I observed Police Officer Christopher O’Connor, Shield # [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant’s bag…I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.”

The Defendant was arrested  for the marijuana that the defendant allegedly threw to the ground. Was it in a public place? As The New York Law Journal Reports, “[a] Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.”  more