Defendant, JORGE RAMOS, is charged with one count Criminal Possession of a Controlled Substance in the Seventh Degree under P.L. § 220.03. He moves to dismiss the accusatory instrument on the grounds that the original complaint was facially insufficient and as a result, his right to a speedy trial has been violated under C.P.L. § 30.30. The People oppose the defendant's motion.

FACIAL SUFFICIENCY

OF ORIGINAL COMPLAINT

The original complaint reads as follows:

[Police Officer Sharon Feaggins] is informed by the sworn statement of Police Officer Michele Herbst, shield number 16694 that, [on or about July 21, 2011 at approximately 8:10 p.m. at a [*2]location opposite 130 Palmetto Street in Kings County, New York State], the informant observed the defendant in possession of a quantity of cocaine which Informant recovered from the ground where co-defendant, Custodio Elroy arrest No. K11670915, dropped it.

The complaint is accompanied by a supporting deposition from P.O. Herbst, dated July 21, 2011 as well as a positive lab test for cocaine, dated July 29, 2011.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (C.P.L. §§ 100.15[3]; 100.40[1] [b]; 70.10.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. (C.P.L. § 100.40[1] [c].) An information which fails to satisfy these requirements is jurisdictionally defective. (C.P.L. §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY2d 729 [1986].) It is a fundamental principle that an information must allege each and every element of the offense charged. People v. Butt, 153 Misc 2d 751 (Crim. Ct. Kings Co. 1992).

Penal Law §220.03 provides that a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree "[w]hen he or she knowingly and unlawfully possesses a controlled substance." Pursuant to P.L. § 15.05 (2) "a person acts knowingly with respect to conduct or to a circumstance [w]hen he is aware that his conduct is of such a nature or that such circumstance exists." To possess means "to have physical possession or otherwise exercise dominion and control over tangible property." P.L. § 10.00 (8). Possession may be either actual or constructive possession. Constructive possession, requires a showing "that the defendant exercised dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v. Manini, 79 NY2d 561, 569 (1992); People v. Pearson, 75 NY2d 1001 (1990); People v. Brown, 240 AD2d 675 (2nd Dept. 1997); People v. Dawkins, 136 AD2d 726 (2nd Dept 1988).

Here, the information fails to allege either actual possession, or facts upon which constructive possession by reason of dominion and control may be based. The defendant is not alleged to be in actual physical possession of the quantity of cocaine nor exercising any control over it. People v. Pearson, supra; People v. Brown, supra; People v. Dawkins, supra.

The complaint also fails to establish the defendant's knowledge of the controlled substance. While the complaint does allege that the drugs were recovered from the ground where co-defendant Custodio Eloy dropped them, as the complaint stands, factual allegations connecting the defendant to the drugs are notably missing. Absent such allegations, it is difficult to establish the defendant's knowing possession of a controlled substance. Furthermore, the court cannot impute knowledge to the defendant of a controlled substance based solely on his presence next to a person who dropped drugs to the ground without additional factual allegations establishing some other nexus between the defendant and the recovered controlled substance. People v. Headley, 143 AD2d 93 (2nd Dept. 1988, aff'd 74 NY2d 858 [1989]).

In order for an accusatory instrument to be facially sufficient it must allege facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the [*3]crime charged. Mere statements of a conclusory nature will not suffice. People v. Givens, 164 Misc 2d 463, 624 N.Y.S. 2d 790 (New York County, 1995); People v. Dumas, Id. This complainant is based solely upon conclusions and suppositions and therefore fails to achieve that requirement.

CALCULATION OF TIME CHARGED

TO THE PEOPLE UNDER CPL § 30.30

Under C.P.L. § 30.30 (1) (b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor or Unclassified Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 AD2d 332; 625 N.Y.S.2d 483 (1st Dept 1995); People v. Santos, 68 NY2d 859; 501 N.E.2d 19; 508 N.Y.S.2d 411 (1986); People v. Berkowitz, 50 NY2d 333; 406 N.E.2d 783; 428 N.Y.S.2d 927 (1980).

The instant action commenced with the defendant's arraignment on July 21, 2011. For purposes of the computation of the applicable speedy trial time, the day on which the accusatory instrument is filed is excluded. People v. Stiles, 70 NY2d 765; 514 N.E.2d 1368; 520 N.Y.S.2d 745 (1987). Accordingly, July 22, 2011 constitutes day one (1) of the ninety (90) day period applicable to the instant charges.

On July 21, 2011 the case was adjourned to September 12, 2011 for the People to file Discovery by Stipulation ("DBS"). Because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30 (4)(a) "irrespective of the People's readiness". People v. Khachiyan, 194 Misc 2d 161 (Crim. Ct., Kings Co., 2002). [Emphasis added]. See, also, People v. Wilson, 2010 NY Slip Op 20136, Crim. Ct., Kings Co.; People v. Dorilas, 19 Misc 3d 75 (2008); People v. Sai, 223 AD2d 439 (1st Dep't, 1996); People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986); C.P.L. § 30.30 (4)(a). 0 days charged.

On September 12, 2011 the People filed their DBS and answered "ready" for trial. The case was then adjourned to November 3, 2011 for hearing and trial. However, as discussed above, the complaint was not facially sufficient.

The People can not be legally "ready" for trial without a properly converted complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, 59 NY2d 921 [1983]). Therefore the period from September 12, 2011 through November 3, 2011 must be charged to the People. 52 days charged to the People.

On November 3, 2011 the People were not ready for trial and requested November 7, 2011 as an alternative start date. The case was adjourned to January 17, 2012 for trial. Generally, the People are chargeable only with the number of days requested, provided an announcement of readiness was previously made. (See, People v. Dushain, 247 AD2d 234 [1st Dept 1998], lv denied, 91 NY2d 1007 [1998]; People v. Rivera, 223 AD2d 476 [1st Dept], lv denied, 88 NY2d 852 [1996]). But as discussed above, the complaint was not facially sufficient [*4]and therefore the court can not credit the People's previous statement of readiness. 75 days included.

On January 17, 2012 the People answered ready for trial. But as discussed above, the complaint was not facially sufficient. The case was adjourned to March 8, 2012 for the defendant to file a motion to dismiss for facial insufficiency, the People's response, and the court's decision. This entire period is excludable. People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986) (court found period during which a case was adjourned for defense motions was excludable in computation of statutory speedy trial time); People v. Sai, 223 AD2d 439 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations). C.P.L. § 30.30 (4) (a). 0 days included.

On March 1, 2012 the People filed a superseding complaint and a statement of readiness off-calendar, tolling the speedy trial clock. People v. Curtis, supra; People v. Stirrup, supra; People v. Douglas, supra. Presuming, arguendo, the facial sufficiency of the superseding complaint, the period following the filing of the statement of readiness was not affected since the time was already excludable due to motion practice.

The superseding information dated 3/1/12 reads as follows:

The deponent is informed by Police Officer Edgar Calderon that [on or about July 21, 2011 at approximately 8:10 PM opposite 130 Palmetto Street in Kings County, New York State] the informant observed the defendant in possession of a quantity of cocaine in Defendant's hand and observed defendant hand the quantity of cocaine to co-defendant Custodio Eloy, arrest #K11670915.

Deponent is further informed by Informant that the informant has had professional training as a police officer in the identification of cocaine, has previously made arrests for the criminal possession of cocaine, has previously seized cocaine, which was determined to be such by a chemical analysis by the Police Department laboratory, and the substance in this case possesses the same physical characteristics as such previously chemically identified substances and by professional training and experience as a police officer is familiar with the common methods of packaging cocaine and the ziplock bag used to package the substance in this case is a commonly used method of packaging such substance.

The deponent is further informed by the supporting deposition of Police Officer Michele A. Herbst that, at the above time and place, the informant recovered said quantity of cocaine from the ground where co-defendant, Custodio Eloy, dropped it.

Deponent is further informed by the supporting deposition of Informant that the informant has had professional training as a police officer in the identification of cocaine, has previously made arrests for the criminal possession of cocaine, has previously seized cocaine, which was determined to be such by a chemical analysis by the Police Department laboratory, and the substance in this case possesses the same physical characteristics as such previously chemically identified substances and by professional training and experience as a police officer is familiar with the common methods of packaging cocaine and the ziplock bag used to package the substance in this case is a commonly used method of packaging such substance. [*5]

Based on the foregoing, in informant's opinion, the substance in this case is cocaine.

The superseding complaint is accompanied by a long-form supporting deposition from Police Officer Herbst dated July 21, 2011, and a short-form supporting deposition from Police Officer Calderon, dated March 1, 2012.

In the People's opposition to the instant motion they assert that the court should only calculate time that has elapsed since the time that the People filed their superseding complaint on March 1, 2012.

As discussed above, this court is in agreement with the defendant's position regarding the facial insufficiency of that original complaint. And while the People had answered ready for trial on that previous accusatory instrument, they were apparently allowed to do so only because at that point no one had noticed the lack of conversion and the case had been deemed an information at arraignment. However, the People can not be legally "ready" for trial without a properly converted complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, 59 NY2d 921 [1983]).

It is well-settled that this court is not bound by previous judicial statements that reference the includability or excludability of time under C.P.L. § 30.30 (People v. Berkowitz, 50 NY2d 333 [1980]). Such a determination is reserved until such time as the defendant actually moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This court rules that the arraignment judge's finding that the complaint was facially sufficient as a fully-converted accusatory instrument was made in error.

The insufficiency of the original complaint requires the 127-day period from September 12, 2011 through January 17, 2012 to be chargeable regardless of the fact that the People filed a superseding information. In People v. Thomas, 4 NY3d 143 (2005), the Court of Appeals held that, at any time before trial or a guilty plea, the People are permitted to add new facts and joinable offenses by filing a superseding information. The court reasoned that "[t]he drafters of the Criminal Procedure Law imported rules regarding superseding indictment into" the provisions governing misdemeanor informations." Id. At 147. Therefore the law regarding superseding indictments under CPL § 30.30 would apply to superseding informations and amended complaints.

The People may add new facts and charges in superseding information. However, if the new facts and charges arise from the same incident set forth in the original instrument, everything relates back to the date of the filing of the original instrument for the purposes of speedy trial calculations. It is only when an amended complaint or superseding information sets forth a new criminal transaction that the charges relating to that incident will receive a separate calculation under CPL § 30.30, with the time charged starting from the filing of the new instrument.

But as long as the superseding or amended information describes the same criminal transaction as was set forth in the original accusatory instrument, all CPL § 30.30 considerations that applied to the original information would apply equally to the new or amended instrument. See, People v. Lomax, 50 NY2d 351 (1980); People v. Osgood, 80 AD2d 623 (2nd Dep't 1981); People v. Sinistaj, 67 NY2d 236 (1986); People v. Bello, 24 AD3d 236 (1st Dep't 2005). Therefore, the speedy trial time of 90 days under CPL § 30.30(1) (b) for the superseding information began to run on the original arraignment date of July 21, 2011.

On March 8, 2012 the People answered ready and the case was adjourned to April 19, [*6]2012 for trial. 0 days included.

On April 19, 2012 the People answered not ready and requested a three-day adjournment for trial. However, the case was adjourned to October 1, 2012 for the defendant to file this instant motion, the People's response, and the court's decision. This entire period is excludable. People v. Burton, supra; People v. Sai, supra. C.P.L. § 30.30 (4) (a). 0 days included.

The foregoing is the decision and the order of the court.

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Dated: April 9, 2013EVELYN J. LAPORTE

Brooklyn, New YorkJudge of the Criminal Court