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This case involves an appeal from a judgment of a trial court

This case involves an appeal from a judgment of a trial court convicting a 44-year old New Yorker upon his plea of guilty of the crime of criminal possession of heroin and cocaine. According to sources, police officers arrested the defendant while seated in an automobile pursuant to a parole violation arrest warrant and a bench warrant. Found in the defendant’s vehicle were a pistol, ammunition and a hypodermic needle. Taken from the defendant’s person were glassine envelopes containing heroin and cocaine. A search of the defendant’s apartment resulted in the seizure of additional drugs and drug paraphernalia.

Following indictment on various weapons and charges on drug crimes, the defendant moved to suppress the confession he made to the police officers after his arrest and the evidence seized from his person and his apartment. The trial court suppressed the evidence taken from the apartment but denied the motion in all other respects. The defendant also moved for the dismissal of his drug possession charge on the ground that the evidence before the grand jury was insufficient to establish the offense. The motion was denied by the trial court. Thereafter, the defendant pleaded guilty to one charge in full satisfaction of all charges and received a bargained-for indeterminate sentence of 4 to 8 years’ imprisonment. His appeal then followed.

On the first ground for reversal, the defendant contends that his statement should have been suppressed because the police failed to inquire as to whether he was represented by counsel before interrogating him. The appellate court junked this argument pointing out that the police credibly denied any awareness of the existence of the outstanding charge at the time of the arrest. On these bases, the appellate court denied the defendant’s request for reversal.

The only other point raised by the defendant that the appellate court considered significant was his concerns regarding the denial of his motion to dismiss the fourth count of the indictment, which was criminal possession of a controlled substance, the charge to which he ultimately pleaded guilty. That count alleged that, on the date of his arrest, defendant possessed one or more substances of an aggregate weight of one eighth ounce or more containing cocaine and heroin. In his request for dismissal, the defendant relied on a state police laboratory report, obtained through discovery, showing that the quantities of heroin and cocaine seized from his person each weighed less than one eighth of an ounce.

The defendant based his motion to dismiss in the statutory definition of the crime, the drug quantity element is stated in the singular, i.e., “one-eighth ounce or more containing a narcotic drug” and that this should be given literal effect to require possession of at least one eighth of an ounce of a single narcotic drug, not a combination of those drugs. Even if defendant’s interpretation of the statute is correct, the appellate court found that he has already forfeited appellate review of the error by his guilty plea. The appellate court explained that appellate review of pleading deficiencies in an indictment is precluded by a guilty plea unless the defect is jurisdictional, such as a failure effectively to charge the commission of a crime. In this case, the allegations in the fourth count of the indictment facially recite each material element of the crime charged, the requisite possession of at least one eighth of an ounce of a narcotic drug. The allegations are consistent with the possession of either cocaine or heroin, or both. The appellate court thus found the pleading defect in the fourth count a mere duplicity.

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