BACKGROUND FACTS The defendant is charged in this Court with the crime of Unlawfully Dealing with a Child in the Second Degree [Penal Law §260.21(3)]. The criminal complaint alleges that on or about September 17, 2019, at approximately 12:07 p.m., at 23 Park Street, Glens Falls, New York, the defendant did, while working as a sales clerk at 42 Degrees, L.L.C., “did intentionally, knowingly, and unlawfully commit the crime of Unlawfully Dealing with a Child in the Second Degree…when: he sells or causes to be sold tobacco in any form to a child less than 18 years old.”1 The factual portion of the criminal complaint alleges that the defendant, while working as a sales clerk at 42 Degrees LLC located at 23 Park Street in the City of Glens Falls, did “unlawfully sell a package of JUUL mint pods containing nicotine to a male whom [sic] was sixteen years old. The defendant did not verify or attempt to verify the age of the sixteen year old male.” According to the New York State Police Incident Report filed with the complaint, this charge resulted from an Underage Vaping Detail conducted at numerous establishments throughout northern Saratoga County and southern Warren County. An underage agent was employed by the Undercover Detail to purchase e-cigarettes from various retail establishment and the sales transaction was witnessed by the Department of Health Sanitarian, Joseph Pennisi, who was present inside the store for each transaction. A supporting deposition of the underage agent, which alleges in pertinent part that the agent purchased Juul mint pod, a tobacco product, from the defendant without having to produce any verification of age. The defendant filed a timely omnibus motion to dismiss. In her motion to dismiss, the Defendant asserts, in pertinent part, that the complaint is legally insufficient because the factual portion of the complaint fails to allege non-hearsay facts demonstrating that the JUUL mint pod contains tobacco in any form. [Schwenker Affirmation, 30]. The defendant further asserts that, under New York law, e-cigarettes and e-cigarette products are “not the same or even substantially the same at [sic] alleging the sale of ‘tobacco in any form’.” [Schwenker Affirmation, 28]. The defendant further claims that the factual assertion in the complaint stating that the JUUL mint pod contains nicotine does not demonstrate that the product is a tobacco product, as nicotine is not always derived from tobacco products and it can be synthetically produced. [Schwenker Affirmation s 30-31]. Finally, the defendant asserts that any allegation that the nicotine in the JUUL mint pod purchased by the defendant was derived from tobacco is “based on multiple levels of hearsay.” [Schwenker Affirmation, 33]. The People oppose the motion asserting that the criminal complaint and the underage agent’s supporting deposition “unambiguously identified the ‘JUUL Mint Pods’ as ‘tobacco product’.” [Gebru Affirmation 21]. ANALYSIS The standard for the facial sufficiency of a criminal information is well settled. In order to be sufficient, the factual portion of an information “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” CPL §100.15 [3]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: “(a) It substantially conforms to the requirements prescribed in section 100.15″; and “(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and “(c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.” Paragraphs (b) and (c) of CPL §100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal complaint, when read together with any supporting depositions. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the complaint is a jurisdictional defect. People v. Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant’s liberty, as this is a basic constitutional prerequisite. McKinney’s CPL §100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). While the burden is on the People to establish a prima facie case for the offenses charged in the accusatory instrument, this requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial.” People v. Kalin, 12 NY3d 225, 230 (2009). The law does not require a criminal information to contain the most precise words or phrases, rather “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” People v. Konieczny, 2 NY3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004), quoting, People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Sanson, 59 Misc 3d 4, 6 (App. Term 2018), lv to appeal denied, 31 NY3d 1086 (2018). The requirement of non-hearsay factual allegations is satisfied by either a deponent’s direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See: People v. Casey, 95 NY2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; New York Pretrial Criminal Procedure §3.7, at 109 [7 West's NY Prac. Series 1996]; People v. Belcher, 302 NY 529, 534 — 535, 99 N.E.2d 874 [1951]). Examples of various hearsay allegations that fall under exceptions to the rule against hearsay, and have been held to provide legally sufficient support for an information charging a misdemeanor offense include a police detective’s allegation that an order of protection was served on a defendant based on a certified copy of the order with defendant’s signature acknowledging service, which is admissible under the public documents or official entry exception (People v. Casey, 95 NY2d at 361 — 362, 717 N.Y.S.2d 88, 740 N.E.2d 233) and a defendant’s admission to an officer that he had been served with the order of protection (Id. at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233); and the police department records documenting car theft, which is admissible as business records (People v. Fields, 74 Misc 2d 109, 344 N.Y.S.2d 413 [Dist. Ct., Nassau County, 1973]; and a copy of a temporary order of protection along with subscribed, certified stenographic transcripts of the proceeding at which the order was issued, which is admissible as business records and public documents (People v. Henry, 167 Misc 2d 1027, 641 N.Y.S.2d 1003 [Dist. Ct., Nassau County, 1996]); and the defendant’s own self-incriminating oral statements made to a deponent officer, admissible as an admission of a party (People v. Alvarez, 141 Misc 2d 686, 688, 534 N.Y.S.2d 90 [Crim. Ct., NY County 1988]); and a complainant’s statement made at the scene of the crime to a police officer, which was admissible as excited utterance (People v. Solomon, 2002 NY Slip Op. 50712[U], 2002 WL 32157170 [Crim. Ct., Kings County, 2002]). Under our law, a person is guilty of Unlawfully Dealing with a Child in the Second Degree, in violation of Penal Law §260.21(3), when that person “sells or causes to be sold tobacco in any form to a child less than twenty-one years old.” Penal Law §260.21(3). The charge of Unlawfully Dealing with a Child in the Second Degree has two essential elements: 1. That [name of child] was a child less than 18 years old at the time of the alleged incident; and 2. That the defendant sold or caused to be sold tobacco in any form to said child. See; Unlawfully Dealing with Child — second Degree — Model Charge, §17:12.60. Pursuant to the Model Charge, the term “tobacco” refers to the leaves of the plant Nicotiana for use in smoking (as cigars or cigarettes) or chewing or as snuff. A. Defendant’s Claim that E-Cigarette Products Can Not Be Considered as Tobacco Products The defendant claims that the JUUL mint pod is an e-cigarettes product that cannot be viewed to be “tobacco in any form” as that phrase is used in Penal Law §260.21(3). [Schwenker Affirmation s 18,28]. Here, the defendant asserts that the New York State Department of Health has given differing definitions between e-cigarettes and tobacco products under PHL §1399-aa and 10 NYCRR 9-3. [Schwenker Affirmation s 18-28]. Moreover, the defendant asserts that, since the Department of Health has provided different definitions for “tobacco” and “e-cigarettes,” the Department of Health has deemed that ecigarettes and e-liquids are not tobacco products. [Schwenker Affirmation s 24-28]. This appears to be an issue of first impression in New York. As the defendant correctly notes, subdivision 13 of Public Health Law §1399-aa defines an electronic cigarette or an e-cigarette to mean “an electronic device that delivers vapor which is inhaled by an individual user, and shall include any refill, cartridge and any other component of such a device.” Public Health Law §1399-aa(5) defines “tobacco products” to mean “one or more cigarettes or cigars, bidis, chewing tobacco, powdered tobacco, nicotine water or any other tobacco products.” In subdivision (a) of 10 NYCRR 9-2.1, the terms “electronic cigarette” and “e-cigarette” are defined to mean “an electronic device that delivers vapor which is inhaled by an individual user, and shall include any refill, cartridge and any other component of such a device; provided, however, that electronic cigarette and e-cigarette shall not mean any product approved by the United States food and drug administration as a drug or medical device, or manufactured and dispensed pursuant to title 5-A of article 33 of the Public Health Law. In subdivision (b) of 10 NYCRR 9-2.1, the terms “electronic liquid” and “e-liquid” are defined as “the solution, substance or material used in an e-cigarette and heated to produce an aerosol or emission to be inhaled by the user, whether the liquid contains nicotine or not.” However, contrary to the defendant’s assertion, these definitions do not state or even infer that e-cigarettes and e-liquids are not tobacco products. Instead, these definitions are intended broadly define electronic cigarettes and e-cigarettes to include all devices that delivers vapor, from e-liquids, which is inhaled by an individual user, regardless of whether the liquid contains nicotine. See; Public Health Law §1399-aa(13); 10 NYCRR 9- 2.1(a)and(b). Moreover, in August of 2016, the Food and Drug Administration determined that” (V)apes, vaporizers, vape pens, hookah pens, electronic cigarettes (e-cigarettes or e-cigs), and e-pipes are some of the many terms used to describe electronic nicotine delivery systems (ENDS) and that ENDS are noncombustible tobacco products. “Products that meet the statutory definition of ‘tobacco products’ include currently marketed products such as dissolvables not already regulated by FDA, gels, waterpipe tobacco, ENDS (including ecigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes), cigars, and pipe tobacco. See; Deeming Rule, 81 FR 28973-01, 2016 WL 2625201 (August 8, 2016). In its Deeming Rule, the FDA explained that “these products use an “e-liquid” that may contain nicotine, as well as varying compositions of flavorings, propylene glycol, vegetable glycerin, and other ingredients. The liquid is heated to create an aerosol that the user inhales. The Agency further stated that: “[E]vidence from the most recent studies on ENDS use among young adults and adults indicates that among adults who had never smoked cigarettes, prevalence of ever e-cigarette use was highest among young adults aged 18 to 24 and decreased with increasing age. However, current cigarette smokers and recent former smokers (i.e., those who quit smoking within the past year) were more likely to use e-cigarettes than long-term former smokers (i.e., those who quit smoking more than 1 year ago) and adults who had never smoked. Current cigarette smokers who had tried to quit in the past year were also more likely to use e-cigarettes than those who had not tried to quit. It is noted that it cannot be determined by the research findings: (1) Whether former cigarette smokers who now exclusively use e-cigarettes would not have ceased smoking cigarettes regardless of e-cigarette use; and (2) whether the e-cigarette use preceded quitting or the quitting occurred first and then was followed by later e-cigarette use. Deeming Rule, 81 Fed. Reg. at 28,985. Thus, the FDA modified the definition of “covered tobacco products” to clarify that components or parts, such as vapes or ENDS, are deemed to be “covered tobacco products” if they either contain tobacco or nicotine or contain any “tobacco derivative.” Deeming Rule, 81 FR 28973-01, 2016 WL 2625201 (August 8, 2016). As a result, e-liquids that do not contain tobacco or nicotine or are not derived from tobacco or nicotine do not meet the definition of “covered tobacco product.” Id. The federal courts have affirmed the FDA’s authority to regulate e-cigarettes and eliquids containing nicotine as tobacco products. See; Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 898-899 (D.C. Cir. 2010)(holding that the FDA has authority to regulate customarily marketed tobacco products — including e-cigarettes — under the Tobacco Control Act); Nicopure Labs, LLC v. Food and Drug Admin., 266 F Supp 3d 360, 393-95 (District Court, D.C., 2017), app. dism., 2017 WL 8683712 (Fed Cir Sept. 14, 2017), aff’d, 2019 WL 6704930 (D.C. Cir. Dec. 10, 2019)(holding that the decision to deem e-cigarettes to be tobacco products is not arbitrary and capricious). Furthermore, according to the Office of U.S. Surgeon General, “e-cigarettes are considered tobacco products because most of them contain nicotine, which comes from tobacco.” https://e-cigarettes.surgeongeneral.gov/. In the present case, both the criminal complaint and supporting deposition allege that the e-cigarette purchased by the underage agent contains nicotine. Thus, contrary to the defendant’s position, the People have sufficiently plead that the defendant sold a “tobacco in any form” to an underage person. Penal Law §260.21(3). B. Defendant’s Claim That the Factual Allegation of Nicotine in the Juul Mint Pod Is Based Entirely on Hearsay The defendant next asserts that the factual allegation that nicotine is an ingredient in the JUUL mint pod allegedly purchased by the underage agents is “based on multiple layers of hearsay.” [Schwender Affirmation 33]. Here, the defendant asserts that the nicotine in the JUUL mint pod can either be produced synthetically or from tobacco products and, as a result, the defendant asserts that the criminal complaint and supporting deposition must give a non-hearsay factual basis to demonstrate that any nicotine in the JUUL mint pod is derived from tobacco and is not a synthetic form of nicotine. [Schwender Affirmation s 30-33]. In the present case, both the criminal complaint and supporting deposition allege that the JUUL mint pod purchased by the underage agent is a tobacco product which contains nicotine. The factual statements are alleged to be based “on direct knowledge and/or upon information and belief, with the sources of Complainant’s information and the grounds for belief being the facts found during a police investigation.” See; Criminal Complaint 5 (emphasis added). The factual allegations in the criminal complaint, when read together with the supporting deposition, are facially sufficient as they give the defendant “…notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” and the factual allegations “should given a fair and not overly restrictive or technical reading.” People v. Konieczny, 2 NY3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004), quoting, People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Sanson, 59 Misc 3d 4, 6 (App. Term 2018), lv to appeal denied, 31 NY3d 1086 (2018). Based on the foregoing, the Defendant’s motion to dismiss for facial and legal insufficiency is DENIED. Defendant’s Motion to Compel Discovery & Inspection The defendant also moves this Court for an order seeking that the People provide disclosure as required under CPL 240.20. The People assert that they have provided all discovery as required under CPL §240.20. Upon review of the motion and response to the motion, together with the People’s discovery responses, the defendant’s motion to compel or preclude is GRANTED to the extent that the People are reminded of their continuing obligation to produce discoverable evidence in conformity with the requirements of CPL §240.20. In the event that said discovery is not supplied in conformity with the requirements of CPL §240.20, then the People shall be subject to an appropriate order of preclusion. Defendant’s Motion for a Bill of Particulars The defendant also moves this Court for a Bill of Particulars, pursuant to CPL 200.95. The People oppose the motion and assert that they have adequately particularized the offenses charged against the defendant and that the alleged course of conduct constituting the offenses charged are sufficiently particularized in the misdemeanor information(s) and further assert that the defendant’s demand is beyond the scope of CPL §200.95. The function of a bill of particulars is to “define more specifically the crime or crimes charged in the indictment, or, in other words, to provide clarification” by furnishing information as to the substance of the factual allegations. Thus its office is to give the defendant information regarding the factual circumstances underlying the accusation so that the defendant understands precisely what it is he or she is to defend against. McKinney CPL 200.95, Practice Commentaries, by Professor Peter Preiser. A bill of particulars “is not a discovery device.” People v. Davis, 41 NY2d 678, 679-680, 394 N.Y.S.2d 865, 363 N.E.2d 572 (1977). Accordingly, when ruling upon the need for specific information in a bill of particulars, courts are required to make a fine distinction between: (a) information that will apprise the defendant of the theory to be advanced at trial; and (b) information as to the evidence that will be used to prove that theory. The defendant is entitled to the former but not the latter in a bill of particulars. McKinney CPL 200.95, Practice Commentaries, by Professor Peter Preiser, citing, People v. Fitzgerald, 45 NY2d 574, 412 N.Y.S.2d 102, 384 N.E.2d 649 (1978). Where an information that charges a crime is a “bare bones” information, which recites the facts needed to support legal sufficiency as ultimate conclusions but omits specification of the particular conduct forming the basis for those facts, then that information falls short of describing the crime with sufficient particularity for preparation of a defense, and a bill of particulars is the appropriate remedy. McKinney CPL 200.95, Practice Commentaries, by Professor Peter Preiser, citing, People v. Villani, 59 NY2d 781,464 N.Y.S.2d 726, 451 N.E.2d 473 (1983). Thus, where a prosecutor has timely served a written refusal pursuant to statute and upon motion, made in writing, of a defendant, who has made a request for a bill of particulars and whose request has not been complied with in whole or in part, the court must, to the extent a protective order is not warranted, order the prosecutor to comply with the request if it is satisfied that the items of factual information requested are authorized to be included in a bill of particulars, and that such information is necessary to enable the defendant adequately to prepare or conduct his or her defense and, if the request was untimely, a finding of good cause for the delay. CPL 200.95(5). Upon review of the defendant’s Demand for a Bill of Particulars and the People’s Response thereto, together with a review of the criminal information and supporting deposition of underage agent, the Defendant’s motion for a Bill of Particulars is denied on the grounds that the People appear to have met the requirements of CPL §200.95, and that the remaining items in the Defendant’s Request are beyond the scope of CPL §200.95. Motion to Preclude the Defendant’s Unnoticed Statements The defendant also seeks to preclude any statements allegedly made by the defendant to a law enforcement officer, which has not been disclosed, or has been insufficiently disclosed, in a CPL §710.30 Notice (Schwenker Affirmation s 37-42). In response, the People assert that any statements of the defendant were properly noticed with a timely CPL §710.30 Notice (Gebru Affirmation 11). While the People assert that a timely 710.30 Notice was provided, a review of this Court’s records fails to demonstrate that the Defendant was served with a CPL 710.30 Notice. Where the People intend to introduce at trial evidence of a statement made by defendant to law enforcement officers and/or of any identification procedure used, the People must, no later than 15 days after arraignment, serve defendant with a notice of intention to use such evidence and, if they fail to serve timely notice or demonstrate good cause for untimely service, may not introduce such evidence in their case in chief. CPL §710.30. See also; People v. Degrijze, 194 AD2d 801, 599 N.Y.S.2d 634, cert. den., 82 NY2d 753, 603 N.Y.S.2d 994, 624 N.E.2d 180 (2d Dept. 1993). CPL 710.30 is a notice statute intended to facilitate a defendant’s opportunity to challenge before trial the voluntariness of statements made by him and/or the legality of the identification process used by law enforcement. People v. Lopez, 84 NY2d 425, 428 (1994), citing, People v. O’Doherty, 70 NY2d 479, 484, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Greer, 42 NY2d 170, 179, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v. Lopez, 84 NY2d 425, 428 (1994). There are only two exceptions to this 15 day notice requirement: (a) the 15 — day time provision may be waived for good cause and (b) the notice may be excused if the defendant has in fact moved for suppression. CPL 710.30(2),(3). In Lopez, the Court of Appeals found that the CPL 710.30 Notice that was served on the defendant was insufficient where the notice informed defendant Lopez that the People intended to offer oral and written statements but failed to specify the time and place the oral or written statements were made and of the sum and substance of those statements. People v. Lopez, 84 NY2d 425, 428 (1994). Thus, to be sufficient, the notice must advise of the time and place the statement was made and must recite the sum and substance of what was said by the defendant. A full copy of the defendant’s statement does not need to be supplied, but the defendant’s alleged statement must be described sufficiently so that the defendant can identify it. CPL §710.30, Practice Commentaries by William C. Donnino, citing, People v. Lopez, 84 NY2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 (1994). In addition, it is irrelevant that the People’s failure to satisfy the requirements of 710.30 did not result in prejudice to the defendant. Instead, the statutory remedy for the People’s failure to comply with the statute is preclusion, and the issue of prejudice or lack of prejudice simply plays no part in the court’s analysis. People v. Lopez, 84 NY2d 425, 428 (1994), citing, CPL 710.30(3); People v. O’Doherty, 70 NY2d 479, 486-487 (1987). Furthermore, the failure to serve a CPL 710.30 notice or an insufficient CPL 710.30 Notice cannot be cured by discovery. People v. Lopez, 84 NY2d 425, 428 (1994). Based on the foregoing, the defendant’s motion to preclude is GRANTED, and the People are precluded from using, in their case-in-chief, any statements that were allegedly obtained from the defendant by law enforcement officer or other public servant that were not disclosed to the defendant, unless the People produce a valid CPL 710.30 Notice with proof of service. Motion to Compel Disclosure of Brady Materials The defendant’s motion for disclosure of Brady materials is GRANTED to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover any exculpatory materials, then the People are required to promptly disclose such exculpatory materials to the defendant. Motion to Compel Disclosure of Rosario Materials The defendant’s motion for disclosure of Rosario (179 AD2d 442) materials is GRANTED, to the extent that the People are directed to provide such Rosario materials within the time requirements of CPL §240.45. Motions Relating to Sandoval, Ventimiglia and Molineux The defendant’s motion seeking to obtain notice from the People of any proposed trial issues pursuant to Ventimiglia or Sandoval or Molineux and their respective progeny is GRANTED, to the extent that the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action. Leave to Make Further Motions The defendant’s motion seeking leave to make further motions is DENIED pursuant to CPL §255.20. This matter continues to be scheduled for January 7, 2019 at 1:30 p.m. for further proceedings. Dated: December 24, 2019 Glens Falls, New York
