People v Legree (Caroline)

[*1] People v Legree (Caroline) 2014 NY Slip Op 51154(U) Decided on July 24, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2011-484 K CR

The People of the State of New York, Respondent,

against

Caroline Legree, Appellant.

Appeal from judgments of the Criminal Court of the City of New York, Kings County (William Miller, J.), rendered January 26, 2011. The judgments convicted defendant, upon her pleas of guilty, of destruction or removal of property in buildings or structures, criminal possession of marihuana in the fifth degree, and theft of services, respectively.

ORDERED that the judgment convicting defendant of destruction or removal of property in buildings or structures is reversed, on the law, and the accusatory instrument is dismissed; and it is further,

ORDERED that the judgments convicting defendant of criminal possession of marihuana in the fifth degree and theft of services, respectively, are affirmed.

Defendant was charged in separate informations with criminal possession of marihuana in the fifth degree (Penal Law § 221.10), theft of services (Penal Law § 165.15 [3]) and destruction or removal of property in buildings or structures in violation of Administrative Code of the City of New York § 10-118 (b). The factual portion of the information charging defendant with destruction or removal of property in buildings or structures merely provides that defendant had been "observed by the informant pushing a cart containing metal wire on a sidewalk" and that, upon being questioned by a police officer, defendant was "unable to provide a receipt for said wire." Defendant pleaded guilty to the charge. Defendant also pleaded guilty to the charges of criminal possession of marihuana in the fifth degree and theft of services. Defendant was sentenced to 40 days in jail on the charge of criminal possession of marihuana in the fifth degree and two concurrent jail terms on the remaining charges. On appeal, defendant contends that the information charging her with destruction or removal of property in buildings or structures is jurisdictionally defective.

In order to be facially sufficient, an information, together with any supporting deposition "accompanying or filed in connection with an information" (CPL 100.20), must allege nonhearsay facts of an evidentiary nature establishing, if true, each element of the charged offense, and the defendant's commission thereof (CPL 100.15 [3]; 100.40 [1] [a], [c]; see People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Jones, 9 NY3d 259, 261 [2007]; People v Dumas, 68 NY2d 729, 731 [1986]). A required element of the offense of destruction or removal of property in buildings or structures (Administrative Code of the City of New York § 10-118 [b]) is that the materials being transported are used materials. Absent from the allegations contained in the factual portion of the information charging this offense is an allegation that the metal wire transported by defendant was used material. As the information fails to allege an element of the offense charged, it is jurisdictionally defective and must be dismissed (see Kalin, 12 NY3d 225; Jones, 9 NY3d 259).

To the extent that the two remaining guilty pleas were an integral part of a comprehensive plea and sentencing agreement, and defendant should have the opportunity to withdraw those guilty pleas (see People v Williams, 17 NY3d 834 [2011]; People v Fuggazzatto, 62 NY2d 862 [*2][1984]; People v Espinal, 10 AD3d 326 [2004]), we need not determine whether those two guilty pleas should be vacated since defendant explicitly waived vacating those two guilty pleas in the brief on appeal. Consequently, the judgments convicting defendant of criminal possession of marihuana in the fifth degree and theft of services, respectively, are affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 24, 2014