The People, Respondent,v.Roosevelt Jennings, Appellant.BriefN.Y.December 5, 2013 OFFICE OF THE DISTRICT ATTORNEY, KINGS COUNTY RENAISSANCE PLAZA at 350 JAY STREET BROOKLYN, N.Y. 11201-2908 (718) 250-2000 CHARLES J. HYNES MARIE JOHN-DRIGO District Attorney Assistant District Attorney April 12, 2013 Honorable Jonathan Lippman Chief Judge of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Roosevelt Jennings APL-2012-00187 Kings County Docket Number 2009KN046172 Submission pursuant to Rule 500.11 Dear Chief Judge Lippman: Defendant Roosevelt Jennings appeals from a December 27, 2011 order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts. People v. Jennings, No. 2009-1644 K CR, 34 Misc. 3d 137A (App. Term, 2d, 11th, & 13th Jud. Dists. Dec. 27, 2011). That order affirmed a judgment of the Criminal Court of the City of New York, Kings County, rendered on July 13, 2009, convicting defendant, after a bench trial, of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. §§ 110.00/220.03), and sentencing him to thirty days’ imprisonment (Hong, J., at trial and sentence). People v. Roosevelt Jennings April 12, 2013 2 STATEMENT OF FACTS A. The Crime and the Accusatory Instrument On June 11, 2009, at approximately 2:30 p.m., in the vicinity of 1430 Bergen Street, in Brooklyn, Police Officer Lenita Harrison observed defendant Roosevelt Jennings drop to the ground a glass pipe containing crack cocaine residue. On June 12, 2009, as a result of these events, defendant was arraigned in the Criminal Court of the City of New York, Kings County, on an accusatory instrument filed under Kings County Docket Number 2009KN046172. In the accusatory instrument, Police Officer Tammye Deas stated that she was informed by the sworn statement of Police Officer Lenita Harrison that on or about June 11, 2009, at approximately 2:30 p.m., at 1430 Bergen Street, in Kings County, defendant committed the offense of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law § 220.03, in that defendant did: Knowingly and unlawfully possess a controlled substance. (A5) (original all in capitals). 1 The factual part of the accusatory instrument stated, in its entirety: The deponent is informed by the sworn statement of Police Officer Lenita Harrison, shield number 26439 that, at the above time 1 Numbers in parentheses preceded by “A” refer to pages of defendant’s appendix. Where applicable, witnesses’ names precede the page references. Numbers preceded by “SA” refer to pages of the supplementary appendix attached to this letter. People v. Roosevelt Jennings April 12, 2013 3 and place, the informant observed the defendant in possession of a quantity of crack cocaine residue which informant recovered from the ground where informant observed defendant drop it. The deponent is informed by the sworn statement of informant that informant has had professional training as a police officer in the identification of crack cocaine residue, has previously made arrests for the criminal possession of crack cocaine residue, has previously seized crack cocaine residue that was determined to be such by the Police Department Laboratory and the crack cocaine residue in this case possesses the same physical characteristics as the previously chemically identified crack cocaine residue, by professional training as a police officer familiar [sic] with the common methods of packaging crack cocaine residue and the glass pipe used to package the crack cocaine residue in this case is a commonly used method of packaging crack cocaine residue. Based upon the foregoing, in informant’s opinion, the substance in this case is crack cocaine residue. (A5). B. The Pretrial Proceedings On June 12, 2009, in the Criminal Court, Kings County, in Part APAR2, during the daytime session of arraignments, Desiree Buenzle, Esq., of the Legal Aid Society, who was defendant’s attorney at his arraignment, also appeared at another arraignment -- the arraignment of Ronald B. under Docket Number 2009KN046102 -- which People v. Roosevelt Jennings April 12, 2013 4 apparently occurred before defendant’s arraignment (SA5-10). 2 At the time of the arraignment of Ronald B., the court officer asked Ms. Buenzle (and the attorney for B.’s co-defendant, Daren T.), “Waive the formal reading of the rights and charges, but not the rights thereunder for this and all other matters before [t]he Court?” (SA2). Ms. Buenzle responded, “Yes” (SA2). Later that day, on June 12, 2009, defendant appeared with counsel, Desiree Buenzle, Esq., for arraignment on the accusatory instrument filed under Docket Number 2009KN046172 (SA14-16). The People filed with the court and served on defense counsel a supporting deposition of Officer Harrison (SA1-SA3, SA15). In the supporting deposition, Officer Harrison stated that she had recovered a glass pipe containing a quantity of crack cocaine residue from the ground where she observed defendant drop it, and 2 The minutes of that other arraignment (the arraignment of Ronald B.) at which Ms. Buenzle appeared on the day of defendant’s arraignment is a part of the record for this case, because, at the time of that other arraignment, Ms. Buenzle made a statement to the court that applied to that case and to all other cases before the court, which included defendant’s case (see SA6). The minutes of the arraignment of Ronald B. are included in the supplementary appendix attached to this letter (see SA5-10). The arraignment of Ronald B. (and of B.’s co-defendant Daren T.) apparently was the first case on which Ms. Buenzle appeared on that day, because (1) the court officer asked her whether she waived the formal reading of the rights and charges, but not the rights thereunder, “for this case and all other matters before [t]he Court” (SA6); and (2) the minutes of the arraignment of Ronald B. and Daren T. were transcribed in response to a request by the District Attorney’s Office to an official court reporter for the minutes of the first case on which Ms. Buenzle appeared on that day. People v. Roosevelt Jennings April 12, 2013 5 she stated the basis for her opinion that the substance in this case was crack cocaine residue (SA1-SA3). The case was adjourned to June 17, 2009 for the People to file a laboratory analysis report (SA9). On June 17, 2009, the People filed with the court and served on defense counsel a laboratory analysis report, which stated that the residue in the glass pipe contained cocaine (SA4, SA18). The charge was subsequently reduced to Attempted Criminal Possession of a Controlled Substance in the Seventh Degree. On July 9, 2009, the case proceeded to trial on that reduced charge (A6, A12-13, A99). C. The Trial The People’s Case On June 11, 2009, at approximately 2:36 p.m., Police Officer LENITA HARRISON was the passenger in a marked police vehicle in which Police Officer Chen was the driver (Harrison: A15-16, A24- 25). Both officers were in uniform (Harrison: A15, A36). The officers were traveling west on Bergen Street in the vicinity of 1430 Bergen Street, in Brooklyn, an area known to Officer Harrison to be a drug-prone location (Harrison: A17-26). The officers had just passed Troy Avenue when Officer Harrison observed defendant walking down the stairwell of 1430 Bergen Street (Harrison: A16-17, A26). The police car was moving slowly, and nothing obstructed the officer’s view of defendant (Harrison: A17, People v. Roosevelt Jennings April 12, 2013 6 A25, A32). Defendant looked “a little apprehensive” upon seeing the police car, but did not try to walk or run away, and did not turn away (Harrison: A27-28). Defendant opened his hand and a glass pipe fell from his hand to the ground (Harrison: A18, A26, A28-29). Defendant looked in the direction of the officers just before dropping the glass pipe (Harrison: A26). The officers stopped the car, got out, and stopped defendant (Harrison: A18, A36). Officer Harrison retrieved the glass pipe from the ground a few inches away from where defendant was standing. There was nothing else on the ground in the area where the officer recovered the pipe (Harrison: A18-19, A38). The glass pipe was not broken or chipped (Harrison: A39). In the course of her career as a police officer, Officer Harrison had made an arrest for possession of a crack pipe approximately ten times, and based on her experience, Officer Harrison believed that the object that she had retrieved from the ground next to defendant was a glass pipe containing crack cocaine residue (Harrison: A19). Officer Harrison vouchered the glass pipe and placed it in a narcotics envelope (Harrison: A19-20, A40-41). 3 Officer Chen placed defendant in handcuffs (Harrison: A18, A37). WAI SZE AU, a criminalist for the New York City Police Department, tested the contents of the glass pipe recovered by 3 The glass pipe was admitted into evidence as People’s Exhibit 1 (Harrison: A21-24; Au: 52). People v. Roosevelt Jennings April 12, 2013 7 Officer Harrison on June 11, 2009, and determined that the residue in the pipe was cocaine (Au: A45-60). Ms. Au prepared a written report regarding her laboratory analysis of the contents of that glass pipe (Au: A52). Defendant’s Case Defendant, ROOSEVELT JENNINGS, testified that on the afternoon of June 11, 2009, he was standing in front of the Albany Houses at Bergen Street and Troy Avenue, waiting for a friend who had told defendant to meet him there (Jennings: A62-63, A69-71). Defendant testified that at about 2:30 p.m., after he had walked up the ramp to the front of the building to look for his friend and had turned away because his friend was not there, he observed a police cruiser pull next to the building (Jennings: A63- 65, A70-72). Defendant testified that the police car stopped and that the driver (a male police officer in uniform) got out (Jennings: A66). Defendant claimed that, without saying anything, the male officer beckoned with his hand for defendant to come over and when defendant approached the officer, he was placed under arrest (Jennings: A67-68, A73-74). Defendant claimed that he thought that he was being arrested for trespassing, because the officer asked him questions about the building, and that he did not learn that he was being charged with possession of a controlled substance until his arraignment the next day (Jennings: A68-69, A74). People v. Roosevelt Jennings April 12, 2013 8 Defendant testified that there was a police officer seated in the passenger seat of the vehicle, but he could not determine the gender of that officer from where he stood (Jennings: A67). Defendant also claimed that he later learned that the other police officer was a female, but he did not have any interaction with her until he arrived at the police station (Jennings: A75). Defendant testified that as he approached the male police officer, he saw debris on the ground, which he could not identify (Jennings: A76). Defendant denied that he had a crack pipe in his hand, dropped a crack pipe onto the ground, or was in possession of a controlled substance that day (Jennings: A69). Defendant claimed that he was not doing anything to draw attention to himself and that the officers had no reason to bother him (Jennings: A75). Defendant testified that he never had any problems with either officer in the past and that he had never seen them before that day (Jennings: A75). The Verdict and Sentence On July 13, 2009, the trial court convicted defendant of the only count with which he was charged -- Attempted Criminal Possession of a Controlled Substance in the Seventh Degree -- and immediately sentenced defendant to thirty days of incarceration and a mandatory surcharge (A99-101). People v. Roosevelt Jennings April 12, 2013 9 D. The Appeal to the Appellate Term Defendant appealed from his judgment of conviction to the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts. On that appeal, defendant argued, insofar as is relevant to the appeal to this Court, that the accusatory instrument was facially insufficient because it charged possession of crack cocaine residue and because, according to defendant, the accusatory instrument was not supported by a positive field test or laboratory test showing that the residue contained cocaine. In a decision and order dated December 27, 2011, the Appellate Term unanimously affirmed defendant’s judgment of conviction, holding, in relevant part, that the sworn allegations of the arresting officer in her supporting deposition, together with the accusatory instrument, were sufficient to satisfy the requirements of an information (A2-A4). People v. Jennings, No. 2009-1644 K CR, 34 Misc. 3d 137A (App. Term, 2d, 11th, & 13th Jud. Dists. Dec. 27, 2011). E. The Appeal to this Court By order dated June 27, 2012, defendant was granted leave to appeal to this Court from the order of the Appellate Term (A1). People v. Jennings, 19 N.Y.3d 962 (2012) (Smith, J.). In the brief that defense counsel initially filed on defendant’s appeal to this Court, counsel argued that the accusatory instrument was facially insufficient because it People v. Roosevelt Jennings April 12, 2013 10 allegedly was not supplemented by a laboratory analysis report, and because, according to counsel, the accusatory instrument did not adequately establish that defendant had knowledge that he possessed cocaine. After the People informed defense counsel that on June 17, 2009, they had in fact filed a laboratory report, which stated that the glass pipe recovered in this case contained cocaine residue, defense counsel, by letter to this Court dated February 28, 2013, requested permission to withdraw defendant’s brief, and to submit a replacement brief addressing only the facial sufficiency of the accusatory instrument to establish that defendant had knowledge that he possessed cocaine. By a letter dated March 8, 2013, the Clerk of this Court notified the parties that the Court, on its own motion, would examine the merits of defendant’s appeal pursuant to section 500.11 of the Court’s Rules of Practice. ARGUMENT THE ACCUSATORY INSTRUMENT WAS FACIALLY SUFFICIENT. Defendant contends that his conviction should be reversed because, according to defendant, the accusatory instrument fails to satisfy the facial sufficiency requirements applicable to an information. Defendant’s contention is meritless for two reasons. First, defendant waived his right to prosecution by information, and consequently the accusatory instrument need only -- and, in People v. Roosevelt Jennings April 12, 2013 11 this case, did -- satisfy the facial sufficiency requirements applicable to a misdemeanor complaint. Second, even if defendant had not waived his right to prosecution by information, the accusatory instrument would be facially sufficient because it satisfied the facial sufficiency requirements applicable to an information. “A trial court’s jurisdiction to commence a criminal action is obtained in the case of a misdemeanor offense by means of a complaint.” People v. Keizer, 100 N.Y.2d 114, 117 (2003). A misdemeanor complaint “serves merely as the basis for commencement of a criminal action, permitting court arraignment and temporary control over the defendant’s person where there is as yet no prima facie case.” People v. Weinberg, 34 N.Y.2d 429, 431 (1974); see C.P.L. § 100.10(4). However, “[a] defendant who has been arraigned upon a misdemeanor complaint may waive prosecution by information and consent to be prosecuted upon the misdemeanor complaint.” C.P.L. § 170.65(3); see C.P.L. § 100.10(4). In this case, defendant waived the right to prosecution by information. Consequently, the accusatory instrument need not satisfy the facial sufficiency requirements applicable to an information and instead need only satisfy the less demanding facial sufficiency requirements applicable to a misdemeanor complaint. See People v. Connor, 63 N.Y.2d 11 (1984) (defendant impliedly waived right to prosecution by information, where defendant waived reading of right and failed to object to being tried on misdemeanor complaint); cf. People v. Roosevelt Jennings April 12, 2013 12 People v. Kalin, 12 N.Y.3d 225, 228 (2009) (in absence of waiver of right to prosecution by information, sufficiency of accusatory instrument must be evaluated under standards that apply to an information). Defendant’s attorney waived the reading of defendant’s right to be prosecuted by information (see SA6, SA12-13). At an earlier arraignment on the day on which defendant was arraigned on the accusatory instrument, his assigned attorney, Desiree Buenzle, Esq., of the Legal Aid Society, stated that she waived the reading of the rights and charges, but not the rights thereunder, for that case and all other cases before the court. See SA6. Defendant’s case was arraigned later that day. 4 See SA12-13. At the time of defendant’s arraignment, defense counsel never requested a reading of the rights and charges. Therefore, counsel’s initial waiver of the reading of the rights and charges -- which explicitly applied to the case before the court at the time of the waiver as well as to “all other matters before [t]he Court” -- applied to defendant’s 4 The record of both arraignment proceedings shows that the arraignment of defendant occurred after the arraignment of Ronald B. (see supra at 4 n.2). But if this Court concludes that the sequence of the two arraignments is not apparent from the record, and if the sequence of those arraignments is relevant to the resolution of the issue of whether defendant waived the reading of his right to prosecution by information, then the appropriate remedy would be for this Court to remit the matter to the Criminal Court for a determination of whether the arraignment of defendant occurred after the arraignment of Ronald B.. See People v. Monclavo, 87 N.Y.2d 1029 (1996) (remitting for determination whether defendant was present at Sandoval hearing). People v. Roosevelt Jennings April 12, 2013 13 case. Accordingly, defendant waived the statutorily mandated reading of his right to be prosecuted by information. See C.P.L. § 170.10(4)(d); People v. Connor, 63 N.Y.2d 11, 14 (1984) (“by his attorney’s waiving the ‘reading of the defendant’s rights and charges’ defendant waived the mandated reading of [the right to be prosecuted by information]”); People v. Fernandez, 20 N.Y.3d 44, 48 (2012) (at arraignment, where defense counsel waived the reading of the rights and charges for all her cases that evening [id. at 55 n.1 (Pigott, J., dissenting)], counsel waived the reading of the right to have a supporting deposition filed when defendant was charged by a simplified traffic information). Moreover, by thereafter proceeding to trial on the accusatory instrument without raising any objection to its facial sufficiency, defendant waived his right to prosecution by information. See Connor, 63 N.Y.2d at 13-15. Because defendant waived his right to be prosecuted by information, the accusatory instrument need only satisfy the facial sufficiency requirements of a misdemeanor complaint and not those of an information. In any event, under either standard, the accusatory instrument was facially sufficient. Pursuant to C.P.L. § 100.15(3), the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” Criminal Procedure Law § 100.40(4) states that a misdemeanor complaint, or a count thereof, is facially sufficient when: People v. Roosevelt Jennings April 12, 2013 14 (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument. “‘Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” C.P.L. § 70.10(2). “Reasonable cause means probable cause.” People v. Maldonado, 86 N.Y.2d 631, 635 (1995). “Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt.” People v. Mercado, 68 N.Y.2d 874, 877 (1986); accord People v. McRay, 51 N.Y.2d 594, 602 (1980). Furthermore, the reasonable cause requirement for complaints is distinct from the requirement of a showing of a prima facie case in informations. See People v. Jones, 9 N.Y.3d 259, 261-62 (2007) (“[u]nlike misdemeanor or felony complaints, which do not require such a showing in an accusatory instrument, the prima facie requirement is specific to informations”). Compare C.P.L. § 100.40(1)(c) with C.P.L. § 100.40(4)(b). Thus, misdemeanor complaints, unlike informations, are not required to contain non-hearsay factual allegations that “establish, if true, every element of the offense People v. Roosevelt Jennings April 12, 2013 15 charged and the defendant’s commission thereof.” C.P.L. § 100.40(1)(c). In light of these principles, and in light of defendant’s waiver of prosecution by information, the accusatory instrument in this case was facially sufficient. The accusatory instrument alleged that defendant committed the crime of Criminal Possession of a Controlled Substance in the Seventh Degree. A person is guilty of that crime when the person “knowingly and unlawfully possesses a controlled substance.” P.L. § 220.03. Cocaine is a “controlled substance” within the meaning of the statute defining that crime. P.L. § 220.00(5); Pub. Health L. § 3306, sched. II(b)(4). Defendant was ultimately convicted of the crime of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, which is a lesser included offense of the crime charged in the accusatory instrument, and consequently the issue on this appeal is whether the accusatory instrument was facially sufficient with respect to a charge of that lesser offense. The factual part of the accusatory instrument, together with the supporting deposition of Officer Harrison and the laboratory analysis report that supplemented the accusatory instrument, alleged that, at the specified time and place, Officer Harrison observed defendant drop a glass pipe to the ground; that, on the basis of Officer Harrison’s professional training and experience as a police officer, she believed that the glass pipe contained a quantity of crack cocaine residue; and that laboratory analysis People v. Roosevelt Jennings April 12, 2013 16 showed that the glass pipe contained cocaine residue. Thus, the accusatory instrument and the documents that supplemented it alleged facts of an evidentiary character supporting or tending to support a charge of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree and provided reasonable cause to believe that defendant committed that offense (and similarly alleged facts of an evidentiary character supporting or tending to support the charge of Criminal Possession of a Controlled Substance in the Seventh Degree and provided reasonable cause to believe that defendant committed that offense). See C.P.L. §§ 100.15(3), 100.40(4). Defendant contends that the factual allegations in the accusatory instrument were insufficient to establish that defendant had knowledge that he possessed cocaine, but that contention is meritless. In People v. Mizell, 72 N.Y.2d 651 (1988), this Court rejected a similar challenge to the facial sufficiency of a misdemeanor complaint. In Mizell, the defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree for possessing vials that contained cocaine “residue,” and the defendant contended that the complaint failed to state facts showing that his possession of a controlled substance was “knowing.” Id. at 653, 656. This Court rejected that contention, noting that “knowledge may be proven circumstantially” and that “generally, possession suffices to permit the inference that possessors know what they possess, especially when it is on their People v. Roosevelt Jennings April 12, 2013 17 person.” Id. at 656 (citing People v. Reisman, 29 N.Y.2d 278, 285 [1971], cert. denied, 405 U.S. 1041 [1972]). This Court concluded: Given that the complaint contains facts of an evidentiary character alleging that defendant possessed a visible amount of a controlled substance, it can be inferred for pleading purposes at this juncture that he knew what he possessed. The complaint, therefore, is facially sufficient. Mizell, 72 N.Y.2d at 656 (citation omitted); see also Reisman, 29 N.Y.2d at 285 (“Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands [or] on his person . . .”). This case is controlled by Mizell. In this case, as in Mizell, defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree for possessing cocaine “residue” on his person; in this case, the cocaine residue was in defendant’s hand before he dropped it to the ground. In addition, in this case, as in Mizell, “the complaint contains facts of an evidentiary character alleging that defendant possessed a visible amount of a controlled substance” (see Mizell, 72 N.Y.2d at 656), because, in this case, Officer Harrison stated in her supporting deposition that she was able to conclude, on the basis of her observations, that the glass pipe that defendant dropped to the ground contained crack cocaine residue. Thus, in this case, as in People v. Roosevelt Jennings April 12, 2013 18 Mizell, “it can be inferred for pleading purposes at this juncture that [defendant] knew what he possessed.” See id. Defendant argues that his case is distinguishable from Mizell, but that argument is meritless. First, defendant repeatedly asserts that his case, unlike Mizell, involves the alleged possession of “burnt” cocaine residue (Defendant’s Rule 500.11 Letter, dated Mar. 25, 2013, at 1, 5-6), but defendant’s assertion is utterly without support in the record. In this case, the accusatory instrument and the supporting deposition both alleged that defendant possessed “crack cocaine residue” (A5, SA1-SA2), and the laboratory analysis report stated that the glass pipe contained “cocaine” and that the amount was “residue” (SA4). But none of those documents stated that the crack cocaine residue was “burnt.” 5 Thus, the allegation in the accusatory instrument and in the supporting deposition in this case that defendant possessed a glass pipe containing “crack cocaine residue” is indistinguishable from the allegation in the misdemeanor complaint in Mizell that the defendant possessed vials containing “crack, cocaine” and from the 5 The evidence at trial is irrelevant to an evaluation of the facial sufficiency of the accusatory instrument, which depends only on whether the accusatory instrument is sufficient “on its face.” See C.P.L. § 100.40; see also In re Edward B., 80 N.Y.2d 458, 463- 65 (1992). In any event, there was no testimony at the trial that the crack cocaine residue in the glass pipe that defendant dropped to the ground was “burnt” (see Harrison: A18-19 [object that defendant dropped to ground was “[a] glass pipe with crack cocaine residue inside of it”]; Au: A51, A56 [laboratory tests showed that substance was cocaine]). People v. Roosevelt Jennings April 12, 2013 19 allegation in the laboratory report in Mizell that the vials contained cocaine “residue.” See Mizell, 72 N.Y.2d at 653; People v. Mizell, 139 Misc. 2d 286 (App. Term, 2d & 11th Jud. Dists.), rev’d, 72 N.Y.2d 651 (1988). Moreover, in the absence of any allegation that the cocaine residue that defendant was charged with possessing was “burnt,” defendant’s argument regarding the visible physical characteristics of burnt cocaine residue is wholly irrelevant to the sufficiency of the allegations in the accusatory instrument and the accompanying documents to establish that defendant knew that he possessed cocaine. 6 6 Even if the accusatory instrument and the accompanying documents had alleged that the cocaine residue that defendant possessed was “burnt” -- which they did not -- such an allegation would not have undermined the inference that defendant knew that he possessed a controlled substance. Given the obvious possibility that the burning of cocaine would not be complete and therefore would leave at least traces of cocaine in the residue, an allegation that the cocaine residue was “burnt” would not have precluded the inference that defendant believed that the pipe contained cocaine. The Missouri and California cases cited by defendant -- State v. Baker, 912 S.W.2d 541 (Mo. Ct. App. 1995); People v. Melendez, 37 Cal. Rptr. 126 (Cal. Ct. App. 1964); and People v. Aguilar, 35 Cal. Rptr. 516 (Cal. Ct. App. 1963) (see Defendant’s Rule 500.11 Letter at 6) -- are not to the contrary. In each of those cases, the issue was whether the evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt at trial; in this case, by contrast, the issue is whether the factual allegations are sufficient to meet the lesser standard, for pleading purposes, of reasonable cause to believe that defendant committed the offense charged. See People v. Henderson, 92 N.Y.2d 677, 680 (1999) (“the prima facie case requirement [for facial sufficiency of an information] is not the same as the burden of proof beyond a reasonable doubt required at trial”). People v. Roosevelt Jennings April 12, 2013 20 Second, defendant seeks to distinguish Mizell on the ground that the cocaine residue in that case was “visible” (Defendant’s Rule 500.11 Letter at 5; see Mizell, 72 N.Y.2d at 656), while in this case, according to defendant, the cocaine in the residue was “invisible” (Defendant’s Rule 500.11 Letter at 7). But the factual allegations in the accusatory instrument and in the supporting deposition contradict defendant’s assertion that there was no visible evidence of the presence of cocaine in the residue: Officer Harrison stated that she had previously seized crack cocaine residue, “which was determined to be such by the police department laboratory”; that “the substance/drugs in this case possesses the same physical characteristics as the previously identified substance/drugs”; and that, consequently, in Officer Harrison’s opinion, the substance in this case was crack cocaine residue (SA2). Thus, Officer Harrison’s factual allegations show that visual examination of the residue did provide a basis to conclude that it contained cocaine. In support of his assertion that “there was no visible narcotic in the residue” (Defendant’s Rule 500.11 Letter at 7), defendant relies on the testimony of the chemist at trial that she could not determine what was in the glass pipe just by looking at it (see Au: A57). But, for two reasons, that testimony does not support defendant’s claim that the allegations in the accusatory instrument were insufficient to establish that defendant knew that he possessed a controlled substance. First, the evidence at trial People v. Roosevelt Jennings April 12, 2013 21 is irrelevant to an evaluation of the facial sufficiency of the accusatory instrument, which depends only on whether the accusatory instrument is sufficient “on its face.” See C.P.L. § 100.40; see also In re Edward B., 80 N.Y.2d 458, 463-65 (1992). Second, when the chemist testified that she could not determine the content of the pipe just by looking at it, and without performing chemical tests, she apparently meant that, just by looking at the pipe, she could not make that determination to a reasonable degree of scientific certainty (see Au: A51, A57). But that statement does not mean that, just by looking at the pipe, someone (such as defendant or Officer Harrison) would lack a basis to conclude, with a lesser degree of certitude than “a reasonable degree of scientific certainty,” that the pipe contained a controlled substance. Thus, even if the chemist’s trial testimony were relevant to an evaluation of the facial sufficiency of the accusatory instrument -- which it is not -- that testimony would be consistent with the inference that defendant knew that the pipe contained a controlled substance. Consequently, the holding of Mizell -- that factual allegations that a defendant possessed a visible amount of cocaine residue on his person were sufficient, for pleading purposes, to support an inference that the defendant knew that he possessed a controlled substance -- controls this case. Indeed, it is even clearer in this case than it was in Mizell that the factual allegations in the accusatory instrument and the People v. Roosevelt Jennings April 12, 2013 22 supporting deposition were sufficient to establish the element of knowledge, because in this case, the allegation that the officer observed defendant drop the glass pipe to the ground constituted evidence of consciousness of guilt and therefore provided an additional basis for the inference that defendant knew that the pipe contained a controlled substance; but in Mizell, the accusatory instrument apparently contained no similar allegations that demonstrated a consciousness of guilt. See People v. Alexander, 37 N.Y.2d 202, 204 (1975) (discarding of evidence upon approach of police officer evinces consciousness of guilt). And the possibility, suggested by defendant, of a different explanation for why he dropped the pipe -- namely, that he might have “believed possession of a crack pipe is illegal, not that it contains cocaine” (Defendant’s Rule 500.11 Letter at 7) -- does not undermine the conclusion that the allegation that defendant dropped the pipe supported the inference that he knew that it contained a controlled substance, because, at the pleading stage, it is irrelevant to the sufficiency of the factual allegations “[t]hat other, innocent inferences [besides guilt] could possibly be drawn from the facts.” See People v. Deegan, 69 N.Y.2d 976, 979 (1987). In addition, the inference that defendant knew that he possessed a controlled substance was further supported by the allegation that the crack cocaine residue was in a glass pipe, because such a pipe is commonly used for smoking crack cocaine. See People v. Ketteles, 62 A.D.3d 902, 903-04 (2d Dep’t 2009) People v. Roosevelt Jennings April 12, 2013 23 (crack pipe is telltale sign of narcotics possession; where officer observed defendant holding glass pipe, which was type commonly used for smoking crack cocaine, officers could reasonably expect to find at least traces of a controlled substance in the pipe). Finally, even if defendant had not waived his right to prosecution by information, the accusatory instrument would still be facially sufficient, because the accusatory instrument satisfies the facial sufficiency requirements applicable to informations. To constitute a facially sufficient information, an accusatory instrument must, in addition to satisfying the requirements of a facially sufficient misdemeanor complaint, also set forth “[n]on- hearsay allegations” that “establish, if true, every element of the offense charged and the defendant’s commission thereof.” C.P.L. § 100.40(1)(c); People v. Suber, 19 N.Y.3d 247, 251 (2012). The allegations that defendant dropped to the ground a glass pipe that contained a substance that appeared to a police officer to be crack cocaine residue, and that laboratory analysis proved to be crack cocaine residue, established, if true, every element of the offense of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, including the element that defendant knew that the pipe contained a controlled substance (and those allegations similarly established, if true, every element of the offense of Criminal Possession of a Controlled Substance in the Seventh Degree). See Mizell, 72 N.Y.2d at 656; Reisman, 29 N.Y.2d at 285. People v. Roosevelt Jennings April 12, 2013 24 * * * Thus, defendant waived his right to prosecution by information, and the accusatory instrument (together with the supporting deposition and the laboratory report) satisfied the requirements of facial sufficiency of a misdemeanor complaint. In any event, the accusatory instrument and those accompanying documents satisfied the requirements of facial sufficiency of an information. Accordingly, the order of the Appellate Term and the judgment of conviction should be affirmed. Respectfully submitted, Marie John-Drigo Assistant District Attorney (718) 250-3548 cc: Natalie Rea, Esq. The Legal Aid Society 199 Water Street -- 5th Floor New York, New York 10038