City Court of Glens Falls, December 23, 2019

McPhillips, Fitzgerald & Cullum, LLP (Eric C. Schwenker of counsel) for defendant.

Jason M. Carusone, District Attorney (Lily Gebru of counsel), for plaintiff.

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, while working as a sales clerk at 42 Degrees, LLC, "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."^[FN*] 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 [*2]throughout northern Saratoga County and southern Warren County. An underage agent was employed by the undercover detail to purchase e-cigarettes from various retail establishments and the sales transactions were 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 alleges in pertinent part that the agent purchased a 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 nonhearsay facts demonstrating that the JUUL mint pod contains tobacco in any form. (Schwenker affirmation ¶ 30.) The defendant further asserts {**66 Misc at 652}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 ¶¶ 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.)

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) [i]t substantially conforms to the requirements prescribed in section 100.15"; and "(b) [t]he 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) [n]on-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, place 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 nonhearsay 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{**66 Misc at 653} committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 100.40 at 387 [2004 ed], citing People v Dumas, 68 NY2d 729 [1986], and County of Riverside v McLaughlin, 500 US 44 [1991].)

While the burden is on the People to establish a prima facie case for the offenses charged [*3]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 [2004], quoting People v Casey, 95 NY2d 354, 360 [2000]; People v Sanson, 59 Misc 3d 4, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], lv denied 31 NY3d 1086 [2018].)

The requirement of nonhearsay 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 [2000]; Lawrence K. Marks et al., New York Pretrial Criminal Procedure § 3.7 at 109 [7 West's NY Prac Series 1996]; People v Belcher, 302 NY 529, 534-535 [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), and a defendant's admission to an officer that he had been served with the order of protection (id. at 362); and the police department records documenting car theft, which are admissible as business records (People v Fields, 74 Misc 2d 109 [Nassau Dist Ct 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 are admissible{**66 Misc at 654} as business records and public documents (People v Henry, 167 Misc 2d 1027 [Nassau Dist Ct 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 [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 an excited utterance (People v Solomon, 2002 NY Slip Op 50712[U] [Crim Ct, Kings County 2002]).

[1] 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." 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 1 Howard Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case in New York § 17:12.60 [Oct. 2019 update].)

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. (Id.)

A. Defendant's Claim That E-Cigarette Products Cannot be Considered as Tobacco [*4]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 ¶¶ 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 Public Heath Law § 1399-aa and 10 NYCRR subpart 9-3. (Schwenker affirmation ¶¶ 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 e-cigarettes and e-liquids are not tobacco products. (Schwenker affirmation ¶¶ 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 {**66 Misc at 655}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 to broadly define electronic cigarettes and e-cigarettes to include all devices that deliver 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], [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." (U.S. Food & Drug Administration, Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems, https://www.fda.gov/tobacco-products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends.) "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 e-cigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal{**66 Misc at 656} vaporizers, and electronic pipes), cigars, and pipe tobacco." (See 81 Fed Reg 28973, 28976 [May 10, 2016; eff Aug. 8, 2016], republished at 2016 WL 2625201 [Deeming Rule] [emphasis added].) The FDA explained that "[t]hese 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." (U.S. Food & Drug Administration, Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems, https://www.fda.gov/tobacco-products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends.) The Agency further stated that

"evidence 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-[*5]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 28985 [citations omitted].)

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 Fed Reg at 28976.) 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. at 28979.)

The federal courts have affirmed the FDA's authority to regulate e-cigarettes and e-liquids containing nicotine as{**66 Misc at 657} tobacco products. (See Sottera, Inc. v Food & Drug Admin., 627 F3d 891, 898-899 [DC Cir 2010] [holding that the FDA has authority to regulate customarily marketed tobacco products—including e-cigarettes—under the Tobacco Control Act of 2009]; Nicopure Labs, LLC v Food & Drug Admin., 266 F Supp 3d 360, 393-395 [D DC 2017], appeal dismissed 2017 WL 8683712 [Fed Cir, Sept. 14, 2017], affd 944 F3d 267 [DC 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 the U.S. Surgeon General, "[e]-cigarettes are considered tobacco products because most of them contain nicotine, which comes from tobacco." (Know the Risks: E-cigarettes & Young People, 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 pleaded that the defendant sold "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 agent is "based on multiple layers of hearsay." (Schwenker 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 nonhearsay factual basis to demonstrate that any nicotine in the JUUL mint pod is derived from tobacco and is not a synthetic form of nicotine. (Schwenker affirmation ¶¶ 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 [*6]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{**66 Misc at 658} 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 be given a fair and not overly restrictive or technical reading." (People v Konieczny, 2 NY3d 569, 575 [2004], quoting People v Casey, 95 NY2d 354, 360 [2000]; People v Sanson, 59 Misc 3d 4, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], lv denied 31 NY3d 1086 [2018].)

Based on the foregoing, the defendant's motion to dismiss for facial and legal insufficiency is denied.

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.

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 is 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. (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 200.95.) A bill of particulars "is not a discovery device." {**66 Misc at 659}(People v Davis, 41 NY2d 678, 679-680 [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. (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 200.95, citing People v Fitzgerald, 45 NY2d 574 [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 [*7]particulars is the appropriate remedy. (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 200.95, citing People v Villani, 59 NY2d 781 [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].)

[2] 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 the 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.

The defendant also seeks to preclude any statements allegedly made by the defendant to a law enforcement officer, which{**66 Misc at 660} have not been disclosed, or have been insufficiently disclosed, in a CPL 710.30 notice (Schwenker affirmation ¶¶ 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 [1993], lv denied 82 NY2d 753 [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 [1987]; People v Greer, 42 NY2d 170, 179 [1977]; People v Huntley, 15 NY2d 72 [1965].)

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 the sum and substance of [*8]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. (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 710.30, citing People v Lopez, 84 NY2d 425 [1994].){**66 Misc at 661}

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], and 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].)

[3] 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 a 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.

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.

The defendant's motion for disclosure of Rosario (People v Rosario, 179 AD2d 442 [1992]) materials is granted, to the extent that the People are directed to provide such Rosario materials within the time requirements of CPL 240.45.

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 15 business days prior to the trial date of this action.

The defendant's motion seeking leave to make further motions is denied pursuant to CPL 255.20.