People v Smith (Tyler)

[*1] People v Smith (Tyler) 2014 NY Slip Op 50306(U) Decided on March 5, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Torres, JJ
12-430.

The People of the State of New York, Respondent,

against

Tyler Smith, Defendant-Appellant,

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Lynn R. Kotler, J.), rendered May 2, 2012, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Lynn R. Kotler, J.), rendered May 2, 2012, affirmed.

In the absence of any indication in the plea colloquy that defendant was informed of his right to be prosecuted on an information and knowingly waived that right, the accusatory instrument must be treated as an information for purposes of assessing its facial sufficiency (see People v Kalin, 12 NY3d 225, 228 [2009]). So viewed, the factual portion of the accusatory instrument established reasonable cause to believe and a prima facie case that defendant was guilty of resisting arrest (Penal Law § 205.30) by alleging, inter alia, that defendant, after "forcibly tak[ing]" another's cell phone and while "carrying a cell phone in [his] hand," tried to avoid being handcuffed by flailing his arms and kicking and shoving the arresting police officer. These allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), were sufficient for pleading purposes to establish that defendant's arrest was "authorized" for purposes of the underlying resisting arrest charge (see generally Matter of Miguel R., 74 AD3d 548 [2010]; cf. People v Jones, 9 NY3d 259, 263 [2007]). Any hearsay defect in the information relating to defendant's initial theft of the cell phone is nonjurisdictional and was waived by defendant's guilty plea (see People v Casey, 95 NY2d at 362-364).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: March 05, 2014