People v Singh (Jagtar)

[*1] People v Singh (Jagtar) 2015 NY Slip Op 50504(U) Decided on April 3, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2012-2183 Q CR

The People of the State of New York, Respondent,

against

Jagtar Singh, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Toko Serita, J.), rendered August 2, 2012. The judgment convicted defendant, upon his plea of guilty, of public lewdness.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an information with two counts of public lewdness (Penal Law § 245.00 [a]) and other crimes with respect to incidents which allegedly occurred on April 11, 2012 and April 14, 2012. He subsequently pleaded guilty to a single count of public lewdness, in satisfaction of the accusatory instrument. On appeal, defendant contends that the accusatory instrument was facially insufficient.

A defendant may, at any time, raise a claim of facial insufficiency of an information resulting from a failure to allege a necessary element. Such a defect is jurisdictional, nonwaivable, and may be raised for the first time on appeal (see People v Casey, 95 NY2d 354, 364 [2000]). Thus, defendant's claim is properly before this court.

Penal Law § 245.00 provides that a person "is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed either from a public place or from other private premises, and with the intent that he be so observed." Defendant was charged with public lewdness in violation of Penal Law § 245.00 (a) and was not charged under Penal Law § 245.00 (b). For purposes of this statute, "the term public place' has no cut-and-dried meaning" (People v McNamara, 78 NY2d 626, 633 [1991]; cf. Penal Law § 221.10; People v Jackson, 18 NY3d 738 [2012]). An act of public lewdness is committed in a public place "where the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect" (People v McNamara, 78 NY2d at 633-634 [footnote omitted]).

The accusatory instrument, in this case an information alleged, in pertinent part, that between 7:00 a.m. and 7:02 a.m. on April 11, 2012, and at approximately 3:40 p.m. on April 14, 2012, respectively, "in front of 127-16 97th Avenue," in the County of Queens, defendant approached his victims, and "intentionally expose[d] the private or intimate parts of his body in a lewd manner or commit[ted] a lewd act in a public place." The allegation that the incidents occurred "in front of 127-16 97th Avenue" sufficiently pleaded the statutory element that defendant's acts were committed in a public place within the meaning of the public lewdness statute (see People v McNamara, 78 NY2d 626; People v Topy, 2002 NY Slip Op 50106[U] [*2][App Term, 1st Dept 2002]; People v W.J., 27 Misc 3d 1222[A], 2010 NY Slip Op 50841[U] [Crim Ct, NY County 2010]; People v Jackson, 17 Misc 3d 788, 791-793 [Crim Ct, NY County 2007]; People v Frank S., 183 Misc 2d 622, 625-626 [Crim Ct, Bronx County 2000]; cf. People v Jackson, 18 NY3d 738, 742-746 [2012]; People v Reynoso, 77 AD3d 528 [2010]; People v Sherman, 24 Misc 3d 344, 350 [Crim Ct, NY County 2009]).

Consequently, the accusatory instrument contained factual allegations of an evidentiary character supporting or tending to support the charge, and demonstrated reasonable cause to believe that defendant committed the offense charged, and contained factual allegations "that establish, if true, every element of the offense charged" (People v Alejandro, 70 NY2d 133, 137 [1987]; see CPL 100.15 [3]; 100.40 [1] [b], [c]; People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]; People v Smart, 43 Misc 3d 131[A], 2014 NY Slip Op 50613[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: April 03, 2015