Opinion
2017-1091 K CR
11-27-2020
The PEOPLE of the State of New York, Respondent, v. Nicholas CICCONE, Appellant.
New York City Legal Aid Society (Paul Wiener of counsel), for appellant. Kings County District Attorney(Leonard Joblove, Gamaliel Marrero and Daniel Berman of counsel), for respondent.
New York City Legal Aid Society (Paul Wiener of counsel), for appellant.
Kings County District Attorney(Leonard Joblove, Gamaliel Marrero and Daniel Berman of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ.
ORDERED that the judgment of conviction is reversed, insofar as it convicted defendant of criminal trespass in the third degree and trespass, on the law, and, insofar as it convicted defendant of attempted criminal possession of a controlled substance in the seventh degree, as a matter of discretion in the interest of justice and on the law, the accusatory instrument is dismissed and the surcharges and fees, if paid, are remitted.
Defendant was charged in an information with criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ), criminal trespass in the third degree ( Penal Law § 140.10 [e] ), and trespass ( Penal Law § 140.05 ). The accusatory instrument, executed and sworn to by a police officer, alleged the following in relevant part:
"Deponent states that, at the above time and place, deponent observed the defendant inside the above mentioned location, a New York City Housing Authority Building [NYCHA] building, in violation of the posted rules and regulations governing entry and use of the above premises.
Deponent further states that as a New York City Police Officer, deponent is the custodian of the above mentioned location, and the defendant did not have permission or authority to enter or remain in the premises.
Deponent further states that deponent observed the defendant in possession of a quantity of crack cocaine, in that deponent recovered said quantity of crack cocaine from the defendant's jacket pocket.
Deponent further states that deponent has had professional training as a police officer in the identification of crack cocaine, has previously made arrests for the criminal possession of crack cocaine, has previously seized crack cocaine, which was determined to be such by a chemical analysis by the Police Department Laboratory, and the substance in this case possesses the same physical characteristics as such previously chemically identified substance.
Based on the foregoing, in deponent's opinion, the substance in this case is crack cocaine."
Following a nonjury trial, defendant was convicted of attempted criminal possession of a controlled substance in the seventh degree ( Penal Law §§ 110.00, 220.03 ), criminal trespass in the third degree and trespass. On appeal, defendant contends that the accusatory instrument is jurisdictionally defective because it failed to allege that the rules and regulations were "conspicuously" posted. As a threshold matter, since defendant did not waive prosecution by information, the instrument's facial sufficiency is reviewed by the standards applicable to an information (see CPL 100.40 [1] ; People v. Kalin , 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; People v. Weinberg , 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 [1974] ). The Court of Appeals has stressed that an information must satisfy significantly more stringent facial sufficiency requirements than those applicable to a complaint (see People v. Smalls , 26 N.Y.3d 1064, 1067, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015] ; People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Alejandro , 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). The factual portion of an information is sufficient when (1) it states "facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.15 [3] ; see CPL 100.40 [1] [a] ); (2) the "allegations of the factual part ... together with those of any supporting depositions ... provide reasonable cause to believe that the defendant committed the offense charged" ( CPL 100.40 [1] [b] ); and (3) the "[n]on-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof" ( CPL 100.40 [1] [c] ; see CPL 100.15 [3] ; People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). The latter is referred to as the "prima facie requirement" ( People v. Jones , 9 N.Y.3d 259, 262, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007] ). "An information that does not satisfy [the prima facie requirement] by failing to allege a complete element of the charged offense is jurisdictionally defective and may be challenged on appeal even though a defendant never raised the alleged insufficiency [previously]" ( People v. Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 [citations omitted]), with the exception of a claim of hearsay, which was implicitly waived under the circumstances presented herein when defendant proceeded to trial without objection (see Casey , 95 N.Y.2d at 366, 717 N.Y.S.2d 88, 740 N.E.2d 233 ).
Criminal trespass in the third degree is established when a person "knowingly enters or remains unlawfully in building or upon real property where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof" ( Penal Law § 140.10 [e] [emphasis added]). As a matter of "common sense and reasonable pleading" ( People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ; see People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), a defendant's knowledge of his or her unlawful presence may be inferred from the existence of "conspicuously posted rules or regulations governing entry and use" of a premises and an inability to provide a legitimate reason for that presence (see People v. Hill , 72 A.D.3d 702, 705, 898 N.Y.S.2d 553 [2010] ; People v. Lightfoot , 22 A.D.3d 865, 866, 803 N.Y.S.2d 188 [2005] ; People v. Babarcich , 166 A.D.2d 655, 656, 561 N.Y.S.2d 255 [1990] ). For all degrees of trespass, "[a] person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so" ( Penal Law § 140.00 [5] ).
We find the information herein facially insufficient to allege the elements of the charge of criminal trespass in the third degree. The information stated that defendant was observed inside a NYCHA building in violation of the "posted rules and regulations," but failed to allege that the signs were conspicuously or clearly posted (cf. People v. Moore , 48 Misc. 3d 143(A), 2015 N.Y. Slip Op. 51337(U), 2015 WL 5459200 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2015] ) and did not specify where the "posted rules and regulations" were located in the building. The information therefore failed to establish the existence of conspicuously posted rules and regulations so as to provide defendant with the requisite knowledge that his presence there was unlawful. Contrary to the People's contention, the use of word "conspicuously" is not simply a "redundant adverb" but goes directly to the knowledge element of the criminal trespass in the third degree charge.
Turning to defendant's next facial sufficiency contention, a person is guilty of trespass "when he [or she] knowingly enters or remains unlawfully in or upon premises" ( Penal Law § 140.05 ). "Where the premises are open to the public, however, a person has license or privilege to enter unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person" ( People v. Barnes , 26 N.Y.3d 986, 989, 19 N.Y.S.3d 471, 41 N.E.3d 336 [2015] [internal quotation marks and citations omitted]). Here, there was no allegation of a lawful order not to enter or remain on the premises personally communicated to defendant and, as discussed above, since the information failed to specify where the "posted rules and regulations" were located, it cannot be said that the posted rules provided defendant with the requisite knowledge that he was trespassing in a public building. Consequently, we find that the factual portion of the information was also insufficient to allege the charge of trespass.
Finally, while defendant raises no facial sufficiency claim with respect to the criminal possession of a controlled substance in the seventh degree charge, we nevertheless review this charge as a matter of discretion in the interest of justice. Pursuant to Penal Law § 220.03, "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance." "Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement (see People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). Rather, the factual allegations must establish the basis of the [police] officer's belief that the substance seized" was a particular type of controlled substance ( Kalin , 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).
Here, the arresting officer merely made a conclusory statement that he observed defendant in possession of crack cocaine that was recovered from defendant's jacket pocket, and that, based on his training and experience, he knew that the substance was crack cocaine. The Court of Appeals in People v. Kalin made it clear that an information's description of the characteristics of a substance, combined with an officer's training in identifying such substance, the packaging of such substance, and the presence of drug paraphernalia, support the inference that the officer properly recognized the substance as a controlled substance (see Kalin , 12 N.Y.3d at 230-231, 878 N.Y.S.2d 653, 906 N.E.2d 381 ; see also People v. Neischer , 64 Misc. 3d 149(A), 2019 N.Y. Slip Op. 51410(U), 2019 WL 4147996 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ). Here, no such inference can reasonably be made because the information only alleged that the officer recovered crack cocaine, with no description of characteristics to support the basis of his belief that the substance was crack cocaine, other than the reference to his training and experience. The officer failed to describe the appearance of the substance or its placement of the substance within, for example, a glass pipe, or some other commonly used packaging of crack cocaine, which may have formed the basis of his belief that the substance recovered was, in fact, crack cocaine (cf. People v. Saveljevs , 56 Misc. 3d 130(A), 2017 N.Y. Slip Op. 50857(U), 2017 WL 2800715 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017] ; People v. Crawford , 66 Misc. 3d 133(A), 2019 N.Y. Slip Op. 52118(U), 2019 WL 7416476 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ). Thus, we find that all of the counts in the information are facially insufficient and must be dismissed.
Based on the foregoing, we need not consider defendant's remaining claims. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.