17-043. THE PEOPLE OF THE STATE OF NEW YORK, res, v. LARRY FRANKLIN, def-app — Judgment of conviction (Kate Paek, J.), rendered August 5, 2016, reversed, on the law, and the accusatory instrument is dismissed.The misdemeanor complaint was jurisdictionally defective because it failed to provide reasonable cause to believe that defendant committed the offense charged (see CPL 100.40[4][b]). The conduct alleged in the complaint, taken together with defendant’s statement to the officer, failed to establish reasonable cause to believe that defendant engaged in the conduct required for acting as a general vendor (see Administrative Code of City of NY §20-453; cf. People v. Kasse, 22 NY3d 1142 [2014]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 201815-468. THE PEOPLE OF THE STATE OF NEW YORK, res, v. NORMAN GILLARD, def-app — Judgment of conviction (Abena Darkeh, J.), rendered May 30, 2015, affirmed.In view of the defendant’s knowing waiver of his right to be prosecuted by an information, the facial sufficiency of the accusatory instrument must be measured by the standard required for misdemeanor complaints (see People v. Dumay, 23 NY3d 518, 524 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of criminal sale of marijuana in the fourth degree (see Penal Law §221.40) under the accomplice liability theory (see Penal Law §20.00). In this connection, the factual portion of the accusatory instrument alleged, inter alia, that at a specified date and time, at Washington Place and Washington Square West, an undercover police officer “approached the defendant and asked if he had marijuana and the defendant told the officer to follow him to a location where an unapprehended other was standing.” The “unapprehended individual [then] g[a]ve him four clear bags of marijuana in exchange for money.” These allegations were sufficient for pleading purposes to establish that defendant “purposefully affected or furthered the sale” of marijuana (People v. Bello, 92 NY2d 523, 526 [1998]) by acting as a “steerer” (see People v. Herring, 83 NY2d 780, 783 [1994]; People v. Williams, 88 AD3d 463 [2011], aff’d 21 NY3d 932 [2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 201813-237. THE PEOPLE OF THE STATE OF NEW YORK, res, v. LUIS MENDIETA, def-app — Judgment of conviction (Matthew A. Sciarrino, J., at plea; Joanne D. Quinones, J. at sentencing), rendered December 13, 2012, affirmed.In view of defendant’s knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v. Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory instrument was jurisdictionally valid, since it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of aggravated unlicensed operation of a motor vehicle in the second degree (see Vehicle and Traffic Law §511[2][a][iv]). The accusatory instrument alleged, inter alia, that at a specified date, time and location, defendant was observed operating a motor vehicle on a public highway; that the computer check run by the officer of Department of Motor Vehicles records showed that defendant’s driving privilege had been “suspended more than two times on more than two dates and ha[d] not been reinstated”; that “defendant’s driving privilege was suspended for failure to answer a New York summons”; and that all such summonses contained a printed notice that “[i]f you do not answer this ticket by mail within fifteen (15) days your license will be suspended.” These factual allegations, “given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]), were sufficient for pleading purposes to establish the elements of the charged offense, including that at the time of the underlying incident, defendant was driving “while knowing or having reason to know” that his license was suspended (Vehicle and Traffic Law §511[1][a]]; see People v. Gerado, 55 Misc 3d 127[A], 2017 NY Slip Op 50344[U][App Term, 1st Dept 2017], lv denied 29 NY3d 1079 [2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 2018By: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.16-368. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JORGE PADILLA, def-app — Judgment of conviction (Harold Adler, J.), rendered February 2, 2016, affirmed.Application by appellant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1976]). We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders, and, upon an independent review of the record, agree that there is no valid appealable issue that could be raised on appeal.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 2018By: Ling-Cohan, J.P., Gonzalez, Edmead, JJ.16-078. THE PEOPLE OF THE STATE OF NEW YORK, res, v. SARAWLA STOUTE, def-app — Judgment of conviction (Ann E. Scherzer, J.), rendered July 1, 2015, affirmed.The accusatory instrument charging defendant with unlicensed driving (see Vehicle and Traffic Law §509[1]) was not jurisdictionally defective. Sworn police allegations that at a specified time and street location, defendant was observed operating a motor vehicle, and that a computer check run by the officer of the records of the New York State Department of Motor Vehicles revealed that defendant’s license was suspended for failure to pay a fine, were sufficient for pleading purposes to establish the elements of the offense, including that defendant was not “duly licensed” to operate the vehicle she was driving (see Vehicle and Traffic Law §509[1]; see also People v. Chatelain, 65 AD3d 930 [2009], lv denied 14 NY3d 886 [2010]; People v. Pate, 52 AD3d 1118 [2008], lv denied 11 NY3d 740 [2008]; People v. Foster, 57 Misc 3d 136[A], 2017 NY Slip Op 51272[U] [App Term, 1st Dept 2017], lv denied 30 NY3d 1060 [2017]). Contrary to defendant’s present contention, allegations that defendant knew or should have known that her license was suspended or revoked were not required to support the offense of unlicensed driving (see People v. Fields, 58 Misc 3d 133[A], 2017 NY Slip Op 51786[U] [App Term, 1st Dept 2017]; see also People v. Pacer, 6 NY3d 504, 513 [2006]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 201817-024. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MOUHAMED THIAM, def-app — Judgment of conviction (Lyle E. Frank, J.), rendered June 24, 2016, reversed, on the law, and the accusatory instrument dismissed.In view of the defendant’s knowing waiver of the right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518 [2014]). Even when viewed under the more liberal standard, the accusatory instrument was jurisdictionally defective, since it failed to allege “facts of an evidentiary character” (CPL 100.15[3]) demonstrating “reasonable cause” to believe (CPL 100.40[4][b]) that defendant was guilty of criminal possession of a controlled substance in the seventh degree (see Penal Law §220.03). The police allegations that the pills recovered from defendant were oxycodone, a prohibited controlled substance, did not meet the reasonable cause requirement, since the arresting officer presented nothing more in the accusatory instrument than a conclusory statement that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs (cf. People v. Kalin, 12 NY3d 225, 231 [2009]). Absent from the instrument were any facts relied upon by the officer in reaching the conclusion that the substance seized was an illegal drug (see Kalin, 12 NY3d 231 [in addition to training and experience, officer relied upon the packaging of the substance and recovery of a marijuana pipe]; People v. Smalls, 26 NY3d 1064, 1067 [2015] [in addition to training and experience, the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe]; Matter of Angel A., 92 NY2d 430, 433 [1998] [in addition to training and experience, officer relied upon "NIK" field test in reaching conclusion that substance was heroin]; People v. Pearson, 78 AD3d 445 [2010], lv denied 16 NY3d 799 [2011][concluding that beige powdery substance contained in eight glassines was heroin, based on the officer's training and experience, including training in the recognition of controlled substance, and its packaging]).Instead of reinstating the remainder of the accusatory instrument, we dismiss it, as a matter of discretion in the interest of justice, since defendant has completed his sentence and no penological purpose would be served by remanding for further proceedings.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 16, 2018The following orders on motion were filed and entered onMarch 16th, 2018.By: Shulman, P.J., Ling-Cohan, Cooper, J.J.570147/17. People v. Reddick, GregoryStipulation “So Ordered”: Appeal adjourned to the September 2018 Term of the Court.570141/18. People v. Moronta, Miguel570108/18. People v. Appiahkubi, DerecOrdered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Esq. of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, Tel # 212-577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. SEE ORDERS.570728/16. People v. Porterfield, FranklinIt is Ordered that the motion of the defendant-appellant seeking a continuance of the stay of execution of the sentence pending the determination of the appeal and an enlargement of the time to file defendant-appellant’s appellate brief is granted. The defendant-appellant shall file his brief for the September 2018 term — the filing deadline for which is July 10, 2018.570064/18. People v. Watson, KevinOrdered that the motion for an extension of time to take an appeal, for permission to appeal from the denial of a CPL §440.10 motion and for other relief is denied in its entirety.
