Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John Wilson, J.), rendered December 12, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) in satisfaction of an accusatory instrument charging that offense as well as unlawful possession of marihuana (Penal Law § 221.05). He now challenges the facial sufficiency of the accusatory instrument.

We treat the accusatory instrument as a misdemeanor complaint since defendant waived prosecution by information (see People v Kalin, 12 NY3d 225, 228 [2009]).

On appeal, defendant argues that the accusatory instrument is jurisdictionally defective because it does not provide "facts of an evidentiary character" (CPL 100.15 [3]) "provid[ing] reasonable cause to believe" (CPL 100.40 [4] [b]) that he committed the charged offense. More specifically, he argues that the factual allegations contained therein do not provide reasonable cause to believe that he possessed marihuana open to public view.

Penal Law § 221.10 (1) provides, in relevant part: [*2]

"A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:

1. marihuana in a public place . . . and such marihuana is . . . open to public view . . ."

We reject defendant's contention. "[A]n accusatory instrument must be given a reasonable, not overly technical reading" (People v Konieczny, 2 NY3d 569, 576 [2004]). When the accusatory instrument here is given such a reading, the "fair implication" (People v Casey, 95 NY2d 354, 360 [2000]) of the allegation at issue is that the basis for the police officer informant's conclusion that the marihuana was "open to public view" (Penal Law § 221.10 [1]) was the officer's own ability to observe the marihuana as defendant stood on the sidewalk (see People v Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50221[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Hence, the accusatory instrument is not jurisdictionally defective.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., and Rios, J., concur.

Weston, J., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:

While I agree with the majority that the accusatory instrument must be treated as a misdemeanor complaint, I find that it is facially insufficient.

A misdemeanor complaint is facially sufficient when it alleges evidentiary facts supporting or tending to support the crime charged (CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the crime charged (CPL 100.40 [4] [b]). As the majority notes, a person is guilty of criminal possession of marihuana in the fifth degree when "he knowingly and unlawfully possesses . . . marihuana in a public place . . . and such marihuana is . . . open to public view" (Penal Law § 221.10 [1]).

Here, the arresting officer's allegation that he observed defendant "in possession of a quantity of marihuana which was open to public view" is too vague to sustain a charge of criminal possession of marihuana in the fifth degree. As this court recognized recently in People v Mejicanos (40 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2013]), the element of "public view" must be supported by something more than a conclusory assertion: it must be supported by facts which raise the inference " that any other member of the public could also have seen the marihuana from the same vantage point' " as the arresting officer (id. at 25, quoting People v Jackson, 18 NY3d 738, 748 [2012]). Otherwise, any reliance upon the statement "open to public view" to satisfy the statutory element would invite "impermissible speculation to fill in the gaps" created by the complaint (People v Mejicanos, 40 Misc 3d at 26). The fact that the marihuana was recovered from defendant's person in a public place does not suggest that it was [*3]also open to public view. To the extent this court concluded to the contrary in People v Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50221[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), I decline to follow it. Without any allegations as to how the marihuana would have been visible to a passerby, the misdemeanor complaint must be dismissed as facially insufficient (see People v Mejicanos, 40 Misc 3d at 25-26).

Accordingly, I vote to reverse the judgment of conviction and dismiss the misdemeanor complaint.
Decision Date: December 09, 2013