People v Yancey (2008 NY Slip Op 52017(U))

People v Yancey (Harry)

2008 NY Slip Op 52017(U) [21 Misc 3d 130(A)]

Decided on October 8, 2008

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Harry Yancey, Defendant-Appellant.

In consolidated criminal actions, defendant appeals from 1) an amended judgment of the Criminal Court of the City of New York, New York County (Martin Murphy, J. at plea and sentencing; Deborah Kaplan, J. at re-sentencing), rendered April 26, 2006, upon a plea of guilty, convicting him of petit larceny, and imposing sentence; and 2) an amended judgment of the same court (Deborah Kaplan, J. at plea, sentencing and re-sentencing), rendered April 26, 2006, upon a plea of guilty, convicting him of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Amended judgment of conviction under docket number 2003NY076855 (Martin Murphy, J. at plea and sentencing; Deborah Kaplan, J. at re-sentencing), rendered April 26, 2006, reversed, on the law, and the accusatory instrument is dismissed. Amended judgment of conviction under docket number 2004NY067596 (Deborah Kaplan, J. at plea, sentencing and re-sentencing), rendered April 26, 2006, affirmed.

We find unavailing defendant's challenge to the facial sufficiency of the misdemeanor complaint charging him with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and unlawful possession of marihuana (Penal Law § 221.05). Allegations that the informant police officer recognized the substances recovered from defendant to be crack cocaine and marihuana based upon their packaging and the officer's training and experience with illicit narcotics, and with respect to the marihuana, based additionally upon the substance's odor, were sufficient to establish "reasonable cause" (CPL 100.40[4][b]) to believe that defendant committed the offenses charged (see and compare Matter of Jahron S., 79 NY2d 632, 639-640 [1992]).

As the People concede, defendant's guilty plea to petit larceny must be vacated and that charge dismissed, in the absence of any showing that defendant knowingly and [*2]intelligently waived the right to be prosecuted upon an information (see CPL 170.10[4], 170.65[1],[3]; People v Weinberg, 34 NY2d 429 [1974]).