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Penal Law §220.03

A Kings Criminal Lawyer said that, defendant, is charged with one count Criminal Possession of a Controlled Substance in the Seventh Degree under P.L. § 220.03. He moves to dismiss the accusatory instrument on the grounds that the original complaint was facially insufficient and as a result, his right to a speedy trial has been violated under C.P.L. § 30.30. The People oppose the defendant’s motion.

A Kings Marijuana Possession Lawyer said that, the Police Officer is informed by the sworn statement of another Police Officer shield number 16694 that, on or about July 21, 2011 at approximately 8:10 p.m. at a location opposite 130 Palmetto Street in Kings County, New York State, the informant observed the defendant in possession of a quantity of cocaine which Informant recovered from the ground where co-defendant, dropped it. The complaint is accompanied by a supporting deposition from the Police Officer dated July 21, 2011 as well as a positive lab test for cocaine, dated July 29, 2011.

The issue in this case is whether defendant’s motion to dismiss the accusatory instrument on the grounds that the original complaint was facially insufficient and as a result, his right to a speedy trial has been violated under C.P.L. § 30.30.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. An information which fails to satisfy these requirements is jurisdictionally defective. It is a fundamental principle that an information must allege each and every element of the offense charged.

Penal Law §220.03 provides that 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.” Pursuant to P.L. § 15.05 (2) “a person acts knowingly with respect to conduct or to a circumstance when he is aware that his conduct is of such a nature or that such circumstance exists.” To possess means “to have physical possession or otherwise exercise dominion and control over tangible property.” P.L. § 10.00 (8). Possession may be either actual or constructive possession. Constructive possession, requires a showing “that the defendant exercised dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized.”

Here, the information fails to allege either actual possession, or facts upon which constructive possession by reason of dominion and control may be based. The defendant is not alleged to be in actual physical possession of the quantity of cocaine nor exercising any control over it. The complaint also fails to establish the defendant’s knowledge of the controlled substance. While the complaint does allege that the drug were recovered from the ground where co-defendant dropped them, as the complaint stands, factual allegations connecting the defendant to the drugs are notably missing. Absent such allegations, it is difficult to establish the defendant’s knowing possession of a controlled substance. Furthermore, the court cannot impute knowledge to the defendant of a controlled substance based solely on his presence next to a person who dropped drugs to the ground without additional factual allegations establishing some other nexus between the defendant and the recovered controlled substance.

In order for an accusatory instrument to be facially sufficient it must allege facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged. Mere statements of a conclusory nature will not suffice. This complainant is based solely upon conclusions and suppositions and therefore fails to achieve that requirement.

Under C.P.L. § 30.30 (1) (b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more criminal offenses, at least one of which is an A Misdemeanor or Unclassified Drug Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss.

The instant action commenced with the criminal defendant’s arraignment on July 21, 2011. For purposes of the computation of the applicable speedy trial time, the day on which the accusatory instrument is filed is excluded. Accordingly, July 22, 2011 constitutes day one (1) of the ninety (90) day period applicable to the instant weapon charges.

On July 21, 2011 the case was adjourned to September 12, 2011 for the People to file Discovery by Stipulation (“DBS”). Because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30 (4)(a) “irrespective of the People’s readiness”. On September 12, 2011 the People filed their DBS and answered “ready” for trial. The case was then adjourned to November 3, 2011 for hearing and trial. However, as discussed above, the complaint was not facially sufficient.

The People cannot be legally “ready” for trial without a properly converted complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. Therefore the period from September 12, 2011 through November 3, 2011 must be charged to the People. 52 days charged to the People. On November 3, 2011 the People were not ready for trial and requested November 7, 2011 as an alternative start date. The case was adjourned to January 17, 2012 for trial. Generally, the People are chargeable only with the number of days requested, provided an announcement of readiness was previously made. But as discussed above, the complaint was not facially sufficient and therefore the court cannot credit the People’s previous statement of readiness. 75 days included. On January 17, 2012 the People answered ready for trial. But as discussed above, the complaint was not facially sufficient. The case was adjourned to March 8, 2012 for the drug defendant to file a motion to dismiss for facial insufficiency, the People’s response, and the court’s decision. This entire period is excludable. On March 1, 2012 the People filed a superseding complaint and a statement of readiness off-calendar, tolling the speedy trial clock. Presuming, arguendo, the facial sufficiency of the superseding complaint, the period following the filing of the statement of readiness was not affected since the time was already excludable due to motion practice.

As discussed above, this court is in agreement with the defendant’s position regarding the facial insufficiency of that original complaint. And while the People had answered ready for trial on that previous accusatory instrument, they were apparently allowed to do so only because at that point no one had noticed the lack of conversion and the case had been deemed an information at arraignment. However, the People cannot be legally “ready” for trial without a properly converted complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument.

It is well-settled that this court is not bound by previous judicial statements that reference the includability or excludability of time under C.P.L. § 30.30. Such a determination is reserved until such time as the defendant actually moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This court rules that the arraignment judge’s finding that the complaint was facially sufficient as a fully-converted accusatory instrument was made in error.

The insufficiency of the original complaint requires the 127-day period from September 12, 2011 through January 17, 2012 to be chargeable regardless of the fact that the People filed a superseding information. The People may add new facts and charges in superseding information. However, if the new facts and charges arise from the same incident set forth in the original instrument, everything relates back to the date of the filing of the original instrument for the purposes of speedy trial calculations. It is only when an amended complaint or superseding information sets forth a new criminal transaction that the charges relating to that incident will receive a separate calculation under CPL § 30.30, with the time charged starting from the filing of the new instrument.

But as long as the superseding or amended information describes the same criminal transaction as was set forth in the original accusatory instrument, all CPL § 30.30 considerations that applied to the original information would apply equally to the new or amended instrument. Therefore, the speedy trial time of 90 days under CPL § 30.30(1) (b) for the superseding information began to run on the original arraignment date of July 21, 2011.

The original complaint lacked sufficient factual allegations to establish that the defendant had constructive possession of a weapon or knowledge of a controlled substance, the defendant’s motion to dismiss for facial insufficiency is granted.

Also, based on the foregoing, in total, the People are charged with 127 days of includable delay since the commencement of the action on July 21, 2011. Because more than 90 days of chargeable time has elapsed on these charges, Defendant’s motion to dismiss the accusatory instrument pursuant to C.P.L. § 30.30, is also granted.

Under Penal Law §220.03 provides that 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.”

If you are charged of the said crime, you will need the legal assistance of a Kings Drug Possession Attorney and/or Kings Criminal Attorney at Stephen Bilkis and Associates.

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