| People v Pearson |
| 2010 NY Slip Op 07996 [78 AD3d 445] |
| November 9, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DonaldPearson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Hannah E.C. Moore of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Harold A. Adler, J., at pleas; John N. Byrne, J., atsentencing), rendered March 26, 2007, convicting defendant of criminal possession of a controlledsubstance in the seventh degree and menacing in the second degree, and sentencing him to concurrentterms of nine months, unanimously affirmed.
As the People concede, defendant did not expressly waive his right to be prosecuted under aninformation rather than a criminal complaint. Thus, the legal sufficiency of the accusatory instrumentmust be evaluated under the standards for an information. While a hearsay defect in an information isnonjurisdictional and is waived by a guilty plea (see People v Casey, 95 NY2d 354, 362-364[2000]), a "failure to comply with the 'prima facie case' requirement for facial sufficiency in CPL 100.40(1) (c) and 100.15 (3) is a jurisdictional defect" (People v Alejandro, 70 NY2d 133, 139[1987]), which cannot be waived by a guilty plea, and thus we review the issue on the merits.
The supporting deposition stated that an officer observed defendant remove from his waistband acondom containing eight glassines of a beige powdery substance, which the officer concluded to beheroin, based on his training and experience, "includ[ing] training in the recognition of controlledsubstance, and its packaging." Although a laboratory report was not attached, and there was no fieldtest, the observations and consequent allegation reported by the officer in his supporting affidavit weresufficient to satisfy the prima facie case requirements of the Criminal Procedure Law (see People v Kalin, 12 NY3d 225,231-232 [2009]). Concur—Saxe, J.P., Friedman, Sweeny, Nardelli and DeGrasse, JJ.
The decision and order of this Court entered herein on July 6, 2010 (75 AD3d 438 [2010]) ishereby recalled and vacated (see 2010 NY Slip Op 87463[U] [2010] [decided simultaneouslyherewith]).