Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander B. Jeong, J.), rendered January 24, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged, in an accusatory instrument not denominated either a misdemeanor complaint or an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) and an additional offense. He pleaded guilty to criminal possession of marihuana in the fifth degree in satisfaction of the accusatory instrument. He now challenges the facial sufficiency of the count of the accusatory
instrument charging him with that offense, arguing that it does not meet the facial sufficiency requirements of CPL sections 100.15 (3) and 100.40 (1) (c).

As defendant correctly contends, because he never waived the right to be prosecuted by information, the accusatory instrument must be measured against the standards for an information (see People v Kalin, 12 NY3d 225, 228 [2009]), including the standards set forth in CPL sections 100.15 (3) and 100.40 (1) (c). These subdivisions provide that, in order for a count of an information to be facially sufficient, the information (and/or its supporting depositions) must allege "facts of an evidentiary character . . ." (CPL 100.15 [3]) that "establish, if true, every element of the offense charged . . ." (CPL 100.40 [1] [c]; see People v Dumas 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731). Hence, defendant's claim must be reviewed by this court as a question of law (see CPL 470.05 [2]) despite defendant's failure to raise it in the Criminal Court (see People v Alejandro, 70 NY2d 133), and the claim was not forfeited by defendant's pleading guilty (see People v Lucas, 11 NY3d 218, 220 [2008]; People v Konieczny, 2 NY3d 569, 573 [2004]).

The police officer alleged in the accusatory instrument, among other things, that he observed defendant in front of a specified address "in possession of a quantity of marihuana visible to a passerby," and that he "recovered the said marihuana from the ground where the defendant threw it." The allegations of the information "establish[ed], if true" (CPL 100.40 [1] [c]), every element of the offense of criminal possession of marihuana in the fifth degree, including the element of "open to public view" (see Penal Law § 221.10 [1]; People v Jones, 22 [*2]Misc 3d 129[A], 2008 NY Slip Op 52627[U] [App Term, 1st Dept 2008]; People v Colon, 17 Misc 3d 128[A], 2007 NY Slip Op 51907[U] [App Term, 1st Dept 2007]). We reject defendant's argument that the phrase "visible to a passerby" was conclusory, rather than "evidentiary," as required by CPL 100.15 (3) (People v Kalin, 12 NY3d 225; cf. People v Dumas, 68 NY2d 729).

Accordingly, the judgment of conviction is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 22, 2010