People v Forsberg (Alfred)

[*1] People v Forsberg (Alfred) 2013 NY Slip Op 51135(U) Decided on July 8, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2011-2591 W CR.

The People of the State of New York, Respondent,

against

Alfred O. Forsberg, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), rendered September 19, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a superseding misdemeanor information with forgery in the third degree (Penal Law § 170.05) and criminal possession of a forged instrument in the third degree (Penal Law § 170.20). The information alleged, among other things, that defendant had possessed a forged Occupational Safety and Health Administration (OSHA) parking placard inside of his vehicle and had used it to park illegally and to attempt to fight parking tickets. Annexed to the accusatory instrument were sworn statements, including one by defendant in which he described how he had altered the placard so that it would indicate that it had been issued to him for his use. Defendant moved to, among other things, dismiss the information on the ground that it was jurisdictionally defective because it was not supported by nonhearsay allegations by an employee at OSHA. In an order dated May 18, 2011, the City Court dismissed the count of the accusatory instrument charging defendant with forgery in the third degree, but found that the count of the accusatory instrument charging defendant with criminal possession of [*2]a forged instrument in the third degree was facially sufficient. Defendant subsequently pleaded guilty to the remaining charge. On appeal, defendant contends that the superseding information is jurisdictionally defective because it lacks corroboration from someone with personal knowledge of the forgery, and did not establish the elements of intent or knowledge. We disagree.

In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). These requirements—with the exception of a claim of hearsay, which is waived if it is not timely raised by motion (see People v Casey, 95 NY2d 354 [2000])—are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731) and may be asserted at any time. The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be alleged and the defendant be provided with sufficient notice so that he can prepare himself for trial and so that he will not be tried again for the same offense (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360).

Penal Law § 170.20, "Criminal possession of a forged instrument in the third degree," provides as follows: "A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument."

Penal Law § 170.00 (7) defines a "forged instrument" as "a written instrument which has been falsely made, completed or altered."

While defendant contends that the accusatory instrument needed to corroborate his admission that he had altered the placard for his own use, in People v Suber (19 NY3d 247, 254 [2012]), the Court of Appeals held that although the corroboration of a defendant's admission is required at trial, it is not a component of the prima facie case requirement for an information. From the factual allegations contained in the subject superseding misdemeanor information, along with the sworn statements, it can be inferred that defendant knew that the placard had been altered and that defendant had the intent to defraud or deceive others into thinking that the placard had been issued to him for his use. Clearly, these allegations provided defendant with sufficient notice so that he could prepare himself for trial and so that he would not be tried again for the same offense (see People v Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d at 575; People v Casey, 95 NY2d at 360). Consequently, the information is not jurisdictionally defective. Defendant's remaining contentions have no merit, and his statutory speedy trial contention is improperly raised for the first time in his reply brief and, therefore, is not properly before this court (see People v Allen, 104 AD3d 1170 [2013]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur. [*3]
Decision Date: July 08, 2013