People v Kingsbarry
Annotate this CaseDecided on October 26, 2012
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
Sincere Kingsbarry, Defendant.
2011KN056538
Appearances:
For the People, Charles J. Hynes, District Attorney, Kings County, by Jason M. Goldberg, Esq., Assistant District Attorney.
For the Defendant, Steven Banks, Legal Aid Society by Erica G. Cioffero, Esq.
John H. Wilson, J.
Defendant is charged with one count of False Personation (PL Sec. 190.23), a Class B misdemeanor, and Riding Bicycle Where Prohibited (TR 4-07(C)(3)(I)), a violation.
By motion dated June 7, 2012, Defendant seeks dismissal of the False Personation charge, asserting that this charge is facially insufficient. Defendant does not challenge the sufficiency of the Riding Bicycle Where Prohibited charge.
The Court has reviewed the court file, Defendant's motion, and the People's response dated August 2, 2012.
For the reasons stated below, Defendant's motion to dismiss is granted to the extent of ordering the People to provide a superceding information to the Court and defense within 30 days of the date of this decision.
STATEMENT OF FACTS
On July 14, 2011, at the intersection of Bergen Street and Eastern Parkway, Brooklyn, [*2]New York, Defendant was observed by Police Officer Jason Smith "riding a bicycle on a public sidewalk where there was no sign permitting this action." See, Criminal Court complaint dated July 14, 2011.
After advising Defendant "that it was a crime to misrepresent one's name, date of birth, or address to a police officer, the Defendant stated that (his) date of birth was June 29, 1993, and that (his) address was 10 Amway Street." See, Criminal Court complaint dated July 14, 2011.
The Complaint further states that "the deponent is informed by the Defendant's New York State Identification Card that" the Defendant's date of birth and address are in fact different than those he reported to the officer. See, Criminal Court complaint dated July 14, 2011.
LEGAL ANALYSIS
Under CPL Sec. 100.15, every accusatory instrument is required to contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information regarding the False Personation charge are facially insufficient.
Under CPL Sec. 190.23, "a person is guilty of false personation when after being informed of the consequences of such act, he or she knowingly misrepresents his or her actual name, date of birth or address to a police officer...with intent to prevent such police officer...from ascertaining such information." [*3]
Defendant asserts that "in order to convert this instrument, the People would have to provide a certified copy of the defendant's New York State ID card." See, Defendant's motion dated June 7, 2012, p 4, para 8. This statement is substantially correct. The accusatory instrument before the Court requires corroboration of the Officer's statement that he reviewed a document in order to establish that Defendant had given the officer an incorrect date of birth and address.
The Criminal Court complaint states that after advising Defendant "that it was a crime to misrepresent one's name, date of birth, or address to a police officer, the Defendant stated that (his) date of birth was June 29, 1993, and that (his) address was 10 Amway Street." See, Criminal Court complaint dated July 14, 2011. The Complaint then states that "the deponent is informed by the Defendant's New York State Identification Card that" the Defendant's date of birth and address are in fact different than those he reported to the officer. See, Criminal Court complaint dated July 14, 2011.
Though this Court does not reach the issue of whether or not a certified copy of the identification card is necessary, for this complaint to be facially sufficient, the People must state the basis for the Officer's knowledge of Defendant's correct date of birth and address in the accusatory instrument. The failure to do so renders the information before the Court in this case facially insufficient.
Under the circumstances of this case, however, the People will be given the opportunity to supercede the information.
In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because...the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).
It is important to note that Defendant asserts that the insufficiency of the People's information mandates dismissal under CPL Sec. 30.30, since the People never provided the Court with a facially sufficient accusatory instrument. See, Defendant's motion dated June 7, 2012, p 6, para 13.Unfortunately, this is not a correct statement of the law.
If any charge of an information is facially insufficient, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989).
In many instances, "the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still [*4]possible." See, People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas. Since the People have the ability to correct the defect in their information, the People will be given the opportunity to cure this error by "either filing a superceding information or prosecutor's information." See, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003).[FN1]
Thus, the People have 30 days from the date of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.
All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.
Dated: Brooklyn, New YorkOctober 26, 2012
_______________________________Hon. John H. Wilson, JCC
Footnotes
Footnote 1: There are instances where the facial insufficiency of an accusatory instrument will impact the People's time to prosecute a matter under CPL Sec. 30.30. See, People v. Gregg, 33 Misc 3d 1223(A), 943 NYS2d 793 (Crim Ct, Kings Cty, 2011). In the majority of cases, however, an instruction by the Court to the People to supercede the information, if followed expeditiously, will not implicate 30.30 time.
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