City Court of Mount Vernon, April 23, 2019

David H. Hawkins, Mount Vernon, for defendant.

Anthony A. Scarpino, Jr., District Attorney, for plaintiff.

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 §§ 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 Metropolitan Transportation Authority Police Officer Connor Faughnan and Officer Drake to be under the platform of track three 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 [*2]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 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{**63 Misc 3d at 733} 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 offenses 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 [2000]). 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 is 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.{**63 Misc 3d at 734}

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 [*3]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).

[1] 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 no-trespass railroad zone."{**63 Misc 3d at 735}

[2] The criminal trespass charge is facially insufficient because it contains no factual allegation to the effect that the railbed upon which defendant is alleged to have trespassed had been "designated and conspicuously posted as a no-trespass railroad zone" (Penal Law § 140.10 [g]; see generally People v Moore, 5 NY3d 725 [2005]). 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 Term, 2d Dept, 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 [*4]382, 383 [App Term, 2d Dept, 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 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.