New York Criminal Lawyer Blog
In this appeal on a criminal case, the court was asked whether defendant’s entry of a guilty plea forfeited his claim that the misdemeanor information was deficient.
A New York Criminal attorney said that in January 2006, defendant was a passenger in an automobile that was stopped by a New York City police officer for having a faulty exhaust system. In the course of the traffic stop, the officer recovered what he believed were nine plastic bags of heroin together with a bag of marijuana from the vehicle’s center console, and a pipe from the glove compartment. Defendant and the other occupants of the car were arrested for criminal possession of a controlled substance in the seventh degree and unlawful possession of marijuana.
At his arraignment the next day, defendant pleaded guilty to seventh-degree possession of a controlled substance in return for a sentence of time served. The trial court informed defendant of the rights that he was waiving by entry of his plea, but did not advise defendant that he had the right to be prosecuted by misdemeanor information rather than a misdemeanor complaint. During the plea allocution, defendant admitted that he had possessed heroin.
Defendant subsequently appealed, arguing that the accusatory instrument was jurisdictionally defective because it did not satisfy the prima facie case requirement for a misdemeanor information as specified in CPL 100.40.
The usual instrument filed to obtain jurisdiction over an accused for a misdemeanor offense is a misdemeanor complaint. A complaint contains an accusatory portion that charges the designated offense and a factual section that alleges “facts of an evidentiary character supporting or tending to support the charges”. The factual part of a complaint must establish “reasonable cause” to believe that the defendant committed the charged offense.
A misdemeanor complaint, however, may not serve as the basis for a prosecution unless the accused expressly waives the right to be prosecuted by a misdemeanor information. Thus, in the absence of such consent, the sufficiency of the accusatory instrument even if it was intended to be a complaint must be evaluated under the standards that apply to an information.
In addition to the reasonable cause requirement, an information must also set forth “nonhearsay allegations” which, if true, establish every element of the criminal offense charged and the defendant’s commission thereof. This is referred to as the “prima facie case requirement” An information that does not satisfy this standard 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 prior to entering a guilty plea. 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. Rather, the factual allegations must establish the basis of the arresting officer’s belief that the substance seized was an illegal drug.
Here, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, the elements of which are the knowing and unlawful possession of a controlled substance in the State of New York. In the accusatory instrument, the officer asserted that his “experience as a police officer as well as his training in the identification and packaging of controlled substances and marijuana” provided the foundation for his conclusion that he had discovered marijuana and heroin in the vehicle.
In reviewing the sufficiency of the petition, we rejected the accused’s argument that a laboratory report is required to establish a prima facie case of drug possession. This Court also held, in a perfunctory fashion, that the officer’s reliance on his experience and training was insufficient to satisfy the prima facie standard.
A “prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial”, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.
Defendant claims that the officer’s allegations present an inadequate foundation for identification of the drugs because the officer did not describe what the substances looked like, nor did he attach a laboratory report indicating that the substances had been tested and found to be heroin and marijuana. The Court has already rejected the notion that a laboratory report is necessary to set forth a prima facie case and we unanimously adhere to that holding today. And, as detailed previously, the officer in this case presented more in the accusatory instrument than merely stating that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs. He asserted that he also relied on the packaging of the substance that he determined to be heroin and that the recovery of a marijuana pipe further supported his belief that he had found criminal marijuana.
Requiring police officers to supply a few additional words describing the appearance of the substance seized would necessitate the adoption of a formulaic recitation. An information charging possession of cocaine, for example, could state that the substance was “white in color” and “powdery,” or “off-white” and “rock-like” in appearance, whereas a charge of marijuana possession could be supported by a statement that the substance was “green and leafy.” While it may be the safer practice for law enforcement to routinely use these descriptive phrases, unlike our dissenting colleagues, we would not hold that the absence of such phraseology rendered the information in this case jurisdictionally deficient.
Accordingly, the order of the Appellate Term should be reversed and the judgment of Criminal Court reinstated.
A criminal Information filed in court should be particular and specific to the crime committed and the person who committed it. Here in Stephen Bilkis and Associates, in case there was a discrepancy or misdemeanor in the Information, you can consult our New York Criminal attorneys, who will help and represent you in court action. You can also consult our New York Drug Crime lawyers who will help you in cases involving drugs and other illegal substances.