People v. West (Shaquean)

People v West (2022 NY Slip Op 50047(U)) [*1] People v West (Shaquean) 2022 NY Slip Op 50047(U) [74 Misc 3d 126(A)] Decided on January 21, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 21, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2019-264 Q CR The People of the State of New York, Respondent, against Shaquean West, Appellant. Appellate Advocates (Leila Hull of counsel), for appellant. Queens County District Attorney (Johnnette Traill, Ellen Abbot and Aharon Diaz of counsel), for respondent. Appeal from five judgments of the Criminal Court of the City of New York, Queens County (Toni Cimino, J.), rendered December 19, 2018. The judgments convicted defendant, upon his pleas of guilty, of three charges of disorderly conduct (under docket numbers CR-004342-18QN, CR-011454-18QN and CR-020868-18QN), bail jumping in the third degree (under docket number CR-020871-18QN), and petit larceny (under docket number CR-038964-18QN), respectively, and imposed sentences. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]) seeking leave to withdraw as counsel in so much of the appeal as is from the judgments convicting defendant of two charges of disorderly conduct under docket numbers CR-004342-18QN and CR-020868-18QN, respectively, bail jumping in the third degree under docket number CR-020871-18QN, and petit larceny under docket number CR-038964-18QN. On so much of the appeal as is from the judgment convicting defendant of disorderly conduct under docket number CR-011454-18QN, assigned counsel challenges the facial sufficiency of that accusatory instrument. ORDERED that the judgment convicting defendant of disorderly conduct under docket number CR-011454-18QN is reversed, as a matter of discretion in the interest of justice, the [*2]guilty plea is vacated, and the accusatory instrument under docket number CR-011454-18QN is dismissed; and it is further, ORDERED that the four judgments convicting defendant of the two charges of disorderly conduct under docket numbers CR-004342-18QN and CR-020868-18QN, respectively, bail jumping in the third degree under docket number CR-020871-18QN, and petit larceny under docket number CR-038964-18QN are affirmed. Defendant was charged in an accusatory instrument, under docket number CR-011454-18QN, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) and unlawful possession of marihuana (former Penal Law § 221.05). He subsequently pleaded guilty to disorderly conduct in satisfaction of that accusatory instrument. On appeal, defendant challenges, among other things, the facial sufficiency of that accusatory instrument. Defendant was also convicted of two charges of disorderly conduct under docket numbers CR-004342-18QN and CR-020868-18QN, respectively, bail jumping in the third degree under docket number CR-020871-18QN, and petit larceny under docket number CR-038964-18QN. "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]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). With respect to the judgment of conviction under docket number CR-011454-18QN, since defendant pleaded guilty to disorderly conduct, a violation (see Penal Law § 240.20), in order to contest the facial sufficiency of the accusatory instrument, defendant has to demonstrate that both counts charged therein, i.e., criminal possession of marihuana in the fifth degree, a class B misdemeanor (see Penal Law § 221.10), and unlawful possession of marihuana, a violation (see former Penal Law § 221.05), were facially insufficient (see People v Thiam, 34 NY3d 1040 [2019]; People v Pierre, 70 Misc 3d 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; People v Perez, 64 Misc 3d 84, 91 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Mason, 62 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We find, as defendant contends and the People concede, that the count charging defendant with criminal possession of marihuana in the fifth degree was facially insufficient because it did not allege that defendant's conduct of smoking a marihuana cigarette occurred in a public place open to public view (see People v Afilal, 26 NY3d 1050 [2015]; People v Rodney, 63 Misc 3d 135[A], 2019 NY Slip Op 50486[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Willis, 62 Misc 3d 144[A], 2019 NY Slip Op 50150[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). The count charging defendant with unlawful possession of marihuana was facially sufficient as charged in 2018, as the accusatory instrument alleged that the officer had observed defendant smoking a lit marihuana cigarette. However, Penal Law § 221.05 was amended effective August 28, 2019 and "unlawful possession of marihuana" is no longer an offense. [*3]Furthermore, any conviction of unlawful possession of marihuana would have been automatically "vacated and dismissed" and rendered "legally invalid" by operation of CPL 160.50 (5), which also became effective on August 28, 2019 (see People v Ford, 69 Misc 3d 135[A], 2020 NY Slip Op 51286[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; People v Lynch, 69 Misc 3d 147[A], 2020 NY Slip Op 51424[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Since defendant's conviction of disorderly conduct, an uncharged offense, derived entirely from that former offense, with the People's approval, we reverse the judgment convicting him of disorderly conduct under docket number CR-011454-18QN, as a matter of discretion in the interest of justice, vacate defendant's guilty plea to disorderly conduct, and dismiss that accusatory instrument in its entirety. We are satisfied with the sufficiency of so much of the brief filed by defendant's assigned counsel pursuant to Anders v California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues as to the remaining convictions which could be raised on appeal. Counsel's application for leave to withdraw as counsel in so much of the appeal as is from the four judgments convicting defendant of two charges of disorderly conduct under docket numbers CR-004342-18QN and CR-020868-18QN, respectively, bail jumping in the third degree under docket number CR-020871-18QN, and petit larceny under docket number CR-038964-18QN is, therefore, granted (see id.; People v Murray, 169 AD3d 227 [2019]; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v Paige, 54 AD2d 631 [1976]; cf. People v Gonzalez, 47 NY2d 606 [1979]). Accordingly, the judgment convicting defendant of disorderly conduct under docket number CR-01145418-QN is reversed, the guilty plea is vacated and that accusatory instrument is dismissed, and the four judgments convicting defendant of two charges of disorderly conduct under docket numbers CR-004342-18QN and CR-020868-18QN, respectively, bail jumping in the third degree under docket number CR-020871-18QN, and petit larceny under docket number CR-038964-18QN are affirmed. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: January 21, 2022