The defendant is charged by misdemeanor information with two (2) counts of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law §220.03 Defendant now makes this omnibus motion seeking the 1) dismissal of the accusatory instrument on the ground of facial insufficiency; 2) suppression of statements made by the defendant to law enforcement, or in the alternative a Huntley hearing; 3) suppression of physical evidence on the grounds that such evidence was unlawfully seized, or in the alternative, granting a Mapp/Dunaway hearing to determine the admissibility of tangible evidence; 4) granting of discovery pursuant to CPL 240.20; and 5) preclusion of the People from use at trial, defendant’s prior convictions or bad acts (Sandoval/Ventimiglia).The People oppose the defendant’s motion on the ground that it is untimely pursuant to C.P.L. §225.20, and as such, contend that it should be summarily denied.C.P.L. §255.20 is controlling with respect to the time frame for making pre-trial motions. C.P.L. §255.20 mandates that all pre-trial motions must be made in the same set of papers and must be served or filed within forty-five (45) days of the defendant’s arraignment unless good cause is shown for making a motion past the forty-five (45) day time limit. A court may summarily deny any pretrial motions filed after the 45-day period, although the court, in the interest of justice and for good cause shown, has the discretion to entertain untimely motions on the merits (see CPL 255.20(3).On April 11, 2018, the defendant was assigned Alexander Ayoub as counsel, and arraigned on the misdemeanor information. On May 3, 2018 the defendant appeared in court with Jeffrey Chartier, a retained attorney, and his assigned attorney was relieved. The case was adjourned on that date and after a few adjournments, on July 18, 2018 the defendant served the instant motion seeking omnibus relief. That is ninety-eight days after the defendant was arraigned and fifty-three days beyond the statutory requirement. “The time restrictions fixed by CPL 255.20 are not casual” (People v. Davidson, 98 NY2d 738, 739 [2002]) and are based upon “the strong public policy to further orderly trial procedures and preserve scarce trial resources” (People v. Knowles, 12 AD3d 939, 940 [2004]).Defendant’s motion papers provide no good cause for the untimely filing of the instant motion (CPL §255.20 [3]). Further, defendant offered no written reply to the People’s papers. On the return date of this motion, defendant’s counsel orally argued that good cause should be found for the untimely filing of this motion on the grounds of a change of counsel, and the fact that the People would not give him discovery, which made it hard for him to make a motion without the discovery. As previously mentioned, counsel first appeared in this matter on May 3, 2018, and this motion was not filed until July 18, 2018, that is seventy-six days after first appearing, and thirty-one days beyond the statutory requirement. Additionally, the lack of discovery that counsel references, is a reason to make a timely motion, therefore the lack of receiving discovery is not considered good cause for the untimely filing herein.Accordingly, the branches of the motion to suppress evidence at trial and to grant defendant discovery are summarily denied. However, since facial insufficiency is a nonwaivable jurisdictional defect which can be challenged for the first time on appeal (see e.g., People v. Alejandro, 70 NY2d 133 [1987], this Court, in its discretion and on the particular facts of this case, will address the issue on the merits (see, People v. Parris, 113 Misc 2d 1066 [Crim. Ct. NY Co. 1982] [where the defect is jurisdictional and nonwaivable, the failure to address it in an omnibus motion, notwithstanding the requirements of CPL §255.20, cannot prevent the defendant from rasing the objection at anytime thereafter]; People v. Martinez, N.Y.L.J., July 24, 1992, [Crim. Ct. Kings Co.]).In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v. Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v. Kalin, 12 NY3d 225 [2009]; People v. Casey, 95 NY2d 354 [2000]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of the requirement of nonhearsay allegations, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v. Casey, 95 NY2d 354). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 575 [2004]; People v. Casey, 95 NY2d at 360).The factual allegations in the accusatory instrument sworn to by the deponent, PO Valente read in relevant part as follows:The defendant(s) at the above date, time and place, while aiding, abetting, and acting in concert with one another, the defendants did knowingly and unlawfully possess two (2) clear plastic bags containing a white granular substance which your deponent recognized to be crack cocaine based on its appearance, color, and packaging. Said two (2) clear plastic bags were located in the area of the sun-visor in the vehicle in which the defendants were found. In addition, at the same, date, time, and place, the defendants while aiding, abetting, and acting in concert, did knowingly and unlawfully possess one (1) glass pipe containing a blackish substance which your deponent recognized to be burnt crack cocaine residue, based on its coloring, and appearance. Said glass pipe was located in the driver’s side door panel. Your deponent’s conclusion that the above substance is crack cocaine, and burnt crack cocaine residue consists in part on deponent’s training and experience as a police officer in recognition of controlled substances including crack cocaine, and burnt crack cocaine residue.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 NY2d at 731). However, a laboratory report is not required to accompany an accusatory instrument charging a defendant with criminal possession of a controlled substance in the seventh degree for it to be facially sufficient (see People v. Kalin, 12 NY3d at 231; Matter of Jahron S., 79 NY2d 632, 640 [1992]; People v. Pearson, 78 AD3d 445 [2010]). Rather, an accusatory instrument charging possession of a controlled substance can be sufficient so long as the factual allegations therein establish the basis of the arresting officer’s belief that the substance seized was a particular type of controlled substance (see People v. Kalin, 12 NY3d at 229; People v. Dumas, 68 NY2d at 731). This Court finds that the accusatory instrument not only identified the particular controlled substance defendant allegedly possessed inside the vehicle, but also stated, based on the arresting officer’s familiarity and training in the identification of controlled substances (see People v. Dumas, 68 NY2d at 729; cf. People v. Kalin, 12 NY3d at 229-231). These sworn allegations by the arresting officer sufficiently established the basis for his belief that defendant was in possession of crack cocaine, a controlled substance (see People v. Chao, 39 Misc 3d 148[A], 2013 NY Slip Op 50941[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Oliver, 31 Misc 3d 130[A], 2011 NY Slip Op 50581[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).The branch of defendant’s motion for a Sandoval hearing is granted and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant’s prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.Accordingly, defendant’s motion is summarily denied with the exception of granting that branch of the omnibus motion for a Sandoval hearing which will be referred to the trial judge.This constitutes the Decision and Order of this Court.Dated: August 13, 2018Mount Vernon, New York
