People v. Fernandez (Giovanni)

People v Fernandez (2021 NY Slip Op 50545(U)) [*1] People v Fernandez (Giovanni) 2021 NY Slip Op 50545(U) [71 Misc 3d 141(A)] Decided on June 11, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 11, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: McShan, J.P., Brigantti, Hagler, JJ. 570208/16 The People of the State of New York, Respondent, against Giovanni Fernandez, Defendant-Appellant. In consolidated criminal appeals, defendant appeals from four judgments of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered January 25, 2016, convicting him, upon his pleas of guilty, of resisting arrest and three counts of disorderly conduct, and imposing sentence. Per Curiam. Judgments of conviction (Laurie Peterson, J.), rendered January 25, 2016, affirmed. In view of defendant's knowing waiver of the right to prosecution by information, the underlying accusatory instruments only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 522 [2014]). So viewed, the complaint charging criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) under docket number 2015NY056292 was not jurisdictionally defective. The complaint "supplied the basis" (People v Smalls, 26 NY3d 1064, 1067 [2015], quoting People v Kalin, 12 NY3d 225, 231 [2009]) for the arresting officer's contention that the "pipe" recovered from defendant's hand contained crack cocaine residue. The instrument recited that the officer had the requisite training and experience in identifying drugs, and that he reached his conclusion about the nature of the substance based on his "observation of the packaging which is characteristic of crack/cocaine" (see People v Kalin, 12 NY3d at 231—232). Where, as here, "the defendant has waived prosecution by information (and therefore has assented to the more lenient reasonable cause standard), these legal and factual allegations are sufficient to particularize the crime charged and protect against a constitutional double jeopardy violation" (People v Thiam, 34 NY3d 1040, 1044 [2019, DiFiore, Ch. J., concurring]). For similar reasons, the complaint charging resisting arrest (see Penal Law § 205.30) under docket number 2016NY003795 was not jurisdictionally defective. The authorized arrest element of resisting arrest was sufficiently charged by way of allegations establishing probable cause to arrest defendant for criminal possession of a controlled substance in the seventh degree (see People v Grier, 47 AD3d 729 [2008], lv denied 10 NY3d 863 [2008]; People v Campbell, 67 Misc 3d 144[A], 2020 NY Slip Op 50763[U] [App Term, 1st Dept 2020], lv denied 35 NY3d 1093 [2020]). The instrument recited that the officer recovered a bag and two "crack pipes" containing crack cocaine, which substance he identified based on his "professional training as a [*2]police officer in the identification of drugs, [his] prior experience as a police officer in drug arrests and [his] observation of the packaging which is characteristic of crack cocaine." The complaint charging unauthorized use of a vehicle in the third degree (see Penal Law § 165.05[1]) and criminal mischief in the fourth degree (see Penal Law § 145.00[1]) under docket number 2015NY072645 was not jurisdictionally defective. The complaint recited that defendant was observed "operat[ing]" the vehicle of complainant, without "permission or authority" from the complainant, the lawful custodian of the car and that defendant caused "a dent to the front bumper" (see People v Johnson, 123 AD3d 631 [2014], lv denied 25 NY3d 1203 [2015]; Matter of Carlos M., 32 AD3d 686 [2006]). We also find unavailing defendant's challenge to the facial sufficiency of the complaint under docket number 2016NY002690. Allegations that defendant entered a specified subway station "beyond the turnstiles, which is an area enclosed by turnstiles and gates in a manner designed to exclude those who do not pay the required fare, without permission or authority to do so, by walking through an exit gate," established reasonable cause to believe that he committed theft of services (see People v Borrero, 26 NY2d 430 [1970]; Matter of Kevin B., 128 AD2d 63, 70 [1987], affd sub nom. Matter of Timothy L., 71 NY2d 835 [1988]) and criminal trespass in the third degree (see People v Davion T., 61 Misc 3d 144[A], 2018 NY Slip Op 51672[U] [App Term, 1st Dept 2018], lv denied 32 NY3d 1170 [2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: June 11, 2021