People v. Jadeed (Mohannad)

People v Jadeed (2021 NY Slip Op 50708(U)) [*1] People v Jadeed (Mohannad) 2021 NY Slip Op 50708(U) [72 Misc 3d 133(A)] Decided on July 22, 2021 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, TIMOTHY S. DRISCOLL, JJ 2019-992 N CR The People of the State of New York, Respondent, against Mohannad Jadeed, Appellant. Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant. Nassau County District Attorney (Kevin C. King and John B. Latella of counsel), for respondent. Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massel, J.), rendered April 17, 2019. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the seventh degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in an information with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The factual portion of the information contains the following allegations by the complainant, Police Officer Thomas Rilling: "Mohammed Jadeed, was found to be in possession of a white rocklike substance believed to be crack cocaine. During a narcotics investigation of a Gray 2015 Lexus with New York registration HUH 1730, deponent recovered from the center cupholder one clear plastic knotted bag containing a white rocklike substance believed to be crack cocaine. The belief that the above substance is crack cocaine is based upon your deponent's 13 years' experience as a police officer, training received through the Nassau County Police Department in the identification of crack cocaine, involvement in hundreds of arrests for drug related offenses including crack cocaine as well as the color, texture and method of packaging." At a jury trial, Police Officer Thomas Rilling testified that, on April 21, 2018 at about [*2]2:20 a.m., he and his partner, Kenneth Kramer, were driving on Fulton Avenue in Hempstead and pulled into a parking lot of a Wells Fargo Bank located at 145 Fulton Avenue. He saw a 2015 gray Lexus parked with the engine running and the inside dome light on. As he approached the parked vehicle, he noticed the passenger in that vehicle smoking what he believed to be crack cocaine from a clear glass pipe. After he and his partner circled the lot, they parked behind the Lexus. His partner approached the driver's side of the vehicle and he approached the passenger's side. He recovered a clear glass pipe commonly used for smoking crack cocaine from the passenger. He had the passenger exit the vehicle and placed him under arrest. Then, from his position standing outside the vehicle, he observed in plain view, in the cup holder of the vehicle, a clear plastic bag containing a rock-like substance which he believed to be crack cocaine. His partner placed defendant under arrest. Following the trial, the jury found defendant guilty of criminal possession of a controlled substance in the seventh degree, and the court imposed a sentence of a conditional discharge. On appeal, defendant contends, among other things, that the information is jurisdictionally defective, the evidence was legally insufficient to establish his guilt beyond a reasonable doubt and the verdict was against the weight of the evidence. "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see also People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). To be legally sufficient, the factual portion of an information must contain "facts of an evidentiary character" (CPL 100.15 [3]; see CPL 100.40 [1] [a]) that provide "reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]) and "[n]on-hearsay allegations [which], if true, [establish] every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see People v Barnes, 26 NY3d 986, 990 [2015]; People v Matthew P., 26 NY3d 332, 335 [2015]). "So 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 Casey, 95 NY2d 354, 360 [2000]; accord People v Kalin, 12 NY3d 225, 230 [2009]; People v Konieczny, 2 NY3d 569, 575 [2004]). Furthermore, since proof of states of mind, such as guilty knowledge or intent, are normally based upon circumstantial evidence (see e.g. People v Johnson, 65 NY2d 556, 561 [1985]; People v Mackey, 49 NY2d 274, 279 [1980]), for pleading purposes, the requisite mental state may be alleged on the basis of a logical inference from the act itself or upon the surrounding circumstances (see People v Mizell, 72 NY2d 651, 656 [1988]; People v Kwas, 52 Misc 3d 52, 54 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Prevete, 10 Misc 3d 78, 80 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). The failure to meet these requirements may be asserted at any time, with the exception of a claim of hearsay, which, as here, is waived if not raised in a timely objection or motion in the trial court (see People v Casey, 95 NY2d 354 [2000]). 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." Contrary to defendant's contention, the element of possession was sufficiently alleged in [*3]the accusatory instrument because the officer set forth that defendant "was found to be in possession of" a quantity of crack cocaine. The information charging a defendant with criminal possession of a controlled substance in the seventh degree based on the allegation that the defendant was "found to be in possession" of contraband is not jurisdictionally defective for the failure to contain evidentiary allegations detailing the manner in which the defendant possessed the controlled substance (see People v Birmingham, 41 Misc 3d 129[A], 2013 NY Slip Op 51726[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Ortiz, 146 Misc 2d 594, 596 [App Term, 2d Dept, 2d & 11th Jud Dists 1990]), and the proof as to the exact nature of defendant's possession should await trial (see People v Cosmos, 49 Misc 3d 134[A], 2015 NY Slip Op 51470[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Ortiz, 146 Misc 2d at 596). Additionally, defendant's knowledge may be established circumstantially by his conduct, and the allegation in the information of possession permits the inference, for pleading purposes, that the defendant knew what he possessed (see People v Mizell, 72 NY2d at 656). The fact that the controlled substance was ultimately recovered from a vehicle does not, without more, contradict the allegation that defendant was found to be in possession of a controlled substance. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt of criminal possession of a controlled substance in the seventh degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Accordingly, the judgment of conviction is affirmed. RUDERMAN, P.J., GARGUILO and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 22, 2021