Defendant is charged by misdemeanor information with one count of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law §220.03; and one count of Criminal Trespass in the Third Degree in violation of Penal Law §140.10.Defendant moves for an order 1) dismissing the charges on the ground that the accusatory instrument is facially insufficient; and 2) dismissing the charges on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§170.30 (1) (e), and 30.30 (1) (b).It is alleged that on September 30, 2016 at approximately 9:00 a.m., at 1 Mount Vernon Avenue, the Metro-North Railroad Mount Vernon West train Station, in the City of Mount Vernon, County of Westchester, State of New York, the defendant was observed by MTA Police Officer Connor Faughnan and Officer Drake, to be under the platform of track 3 at the train station in violation of no trespassing signs. The defendant was placed under arrest for trespassing and placed in handcuffs. When the defendant was searched incident to his arrest, he was found to be in possession of a crack pipe containing crack cocaine residue.While processing the defendant, it is further alleged that he admitted to the officers that he went under the platform at the train station to smoke crack cocaine. After the defendant was processed, the defendant was released on two desk appearance tickets after posting $100.00 cash bail. The desk appearance tickets advised the defendant to appear in the Mount Vernon City Court on November 2, 2016.On November 2, 2016 the defendant failed to appear in this Court and a warrant letter was issued to the defendant advising him to appear in this Court on November 16, 2016. On November 16, 2016 the defendant again failed to appear in this Court. An arrest warrant was issued for the defendant’s arrest.On March 15, 2019 the defendant was produced in this Court, the arrest warrant was executed and the defendant was arraigned. The defendant entered a not guilty plea and requested an adjournment to April 8, 2019. The People announced their readiness for trial. On April 8, 2019 the defendant was present in this Court and filed said instant motion to dismiss on the grounds of speedy trial, and that the accusatory instrument is defective in that it fails to assert facts supporting every element of the offense charged and the defendant’s commission thereof.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 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 instant accusatory instrument herein alleges, in relevant part, that on September 30, 2016, at approximately 9:00 a.m., at the Mount Vernon West Train Station in the City of Mount Vernon, the defendant knowingly entered and remained unlawfully under the platform, which is protected by a fence, and a sign present at the head of the platform stating no trespassing without permission or lawful authority to be there. The accusatory also alleges that the defendant at the aforesaid time and place, did knowingly and unlawfully possess a glassine crack pipe containing a residue substance.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).In Kalin, the Court of Appeals concluded that, because the officer’s account of his experience, the packaging of the drugs, and the drug paraphernalia recovered from the car “supplied the basis” for his belief that the substances in question were illegal drugs, the information was facially sufficient notwithstanding the absence of a lab report or a description of the appearance of the drugs themselves (id. at 231-232). Here, unlike as in Kalin, the information is facially insufficient because it fails to contain adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant’s possession as a controlled substance. Moreover the officer failed to articulate how he reached his conclusion about the nature of the substance. The officer merely stated that the defendant possessed a crack pipe containing a residue substance. As such, this count of the accusatory instrument is facially insufficient and is hereby dismissed.The defendant was also charged with Criminal Trespass in the Third Degree in violation of Penal Law §140.10 (g). This subdivision provides:“A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully…upon real property…“(g) where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a notrespass railroad zone, pursuant to section eighty-three-b of the railroad law, by the city or county in which such property is located” (emphasis added).Railroad Law §83-b (1) provides:“Any city with a population of one million or more and the counties of Monroe, Nassau, and Suffolk are authorized and empowered to adopt or amend a local law or ordinance designating any portion or portions of property consisting of a rightof- way or yard of a railroad or rapid transit railroad as a no-trespass railroad zone and providing for the conspicuous posting thereof for purposes of establishing criminal liability for trespass upon such property pursuant to subdivision (g) of section 140.10 of the penal law” (emphasis added).The Criminal Trespass charge is facially insufficient because it contains no factual allegation to the effect that the rail bed upon which defendant is alleged to have trespassed had been “designated and conspicuously posted as a no-trespass railroad zone…by the city or county in which [the rail bed was] located” (Penal Law §140.10 [g] [emphasis added]; see generally People v. Moore, 5 NY3d 725 [2005]). Moreover, neither Westchester County nor Mount Vernon is authorized by Railroad Law §83-b (1) to establish, by posting, criminal liability under Penal Law §140.10 (g) for trespassing. As the Criminal Trespass charge is jurisdictionally defective, it must also be dismissed (see People v. Moore, 5 NY3d 725 [2005], supra; People v. Kerr, 20 Misc 3d 73 [App Tem, 9th & 10th Jud Dists 2008]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY2d 729 [1986]; People v. Hoffman, 180 Misc 2d 382, 383 [App Term, 9th & 10th Jud Dists 1999]).Accordingly, defendant’s motion to dismiss the accusatory instrument as facially insufficient is granted. This Court directs sealing to be stayed for thirty (30) days from the return date of this motion. The People are granted leave to move to amend or otherwise cure the defects in the information consistent with CPL §§30.30 and 170.30. Should the People file a facially sufficient information, defendant may renew the remaining branch of the instant motion.This constitutes the Decision and Order of this Court.Dated: April 23, 2019Mount Vernon, New York
