People v Gilpin (Robert)

[*1] People v Gilpin (Robert) 2012 NY Slip Op 51822(U) Decided on September 13, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-2370 K CR.

The People of the State of New York, Respondent,

against

Robert Gilpin, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered May 29, 2010. The judgment convicted defendant, upon his plea of guilty, of resisting arrest.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with disorderly conduct (Penal Law § 240.20 [1]) and resisting arrest (Penal Law § 205.30). The misdemeanor information states, in part, that, on a public street, the deponent "observed that there was a large crowd gathered around the defendant and observed that the defendant was yelling and screaming and kicking and punching the property of a commercial establishment . . . [and] that the defendant did attempt to prevent defendant's own lawful arrest by flailing defendant's arms and refusing to be handcuffed."
Defendant subsequently pleaded guilty to resisting arrest. On appeal, defendant contends that the judgment of conviction should be reversed, and the misdemeanor information dismissed, because the accusatory instrument is jurisdictionally defective as it failed to set forth sufficient facts to establish that the arrest for disorderly conduct was authorized. [*2]
We note that a challenge to the facial sufficiency of an accusatory instrument based on nonwaivable jurisdictional defects is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225 [2009]; People v Konieczny, 2 NY3d 569 [2004]). Therefore, defendant's contention must be reviewed by this court as a question of law (see CPL 470.05 [2]) despite his failure to raise it in the Criminal Court (see People v Alejandro, 70 NY2d 133 [1987]).

In order for an information to be facially sufficient, the information (and/or its supporting depositions) must allege, among other things, "facts of an evidentiary character" (CPL 100.15 [3]) that "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see People v Dumas, 68 NY2d 729, 731 [1986]).

In People v Dreyden (15 NY3d at 103), the Court of Appeals stated: "[T]he test for whether a flaw in an accusatory instrument is jurisdictional . . . is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy (see Kalin, 12 NY3d at 231-232; see also People v Casey, 95 NY2d 354, 366 [2000])."

The information involved herein passes the Dreyden test. Giving the accusatory instrument, "a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d at 360), we find that the factual allegations provided defendant "with notice sufficient to prepare a defense and [were] adequately detailed to prevent [him] from being tried twice for the same offense" (People v Konieczny, 2 NY3d at 575-576). As we find that the information sufficiently alleged facts establishing that defendant's arrest for disorderly conduct was authorized, "defendant's challenge to the information was forfeited by operation of law upon his entering a guilty plea" (People v Kalin, 12 NY3d at 232 [citation omitted]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: September 13, 2012