People v Vasquez-Uceda (Marvin)

[*1] People v Vasquez-Uceda (Marvin) 2020 NY Slip Op 50268(U) Decided on February 20, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2017-1990 N CR

The People of the State of New York, Respondent,

against

Marvin A. Vasquez-Uceda, Appellant.

Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Nassau County District Attorney (Tammy J. Smiley and Autumn S. Hughes of counsel), for respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Joy M. Watson, J.), rendered August 30, 2017. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Upon finding that prior counsel's Anders brief (see Anders v California, 386 US 738 [1967]) was inadequate, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal (63 Misc 3d 163[A], 2019 NY Slip Op 50929[U]). New counsel has submitted a brief arguing, among other things, that the information charging defendant with endangering the welfare of a child is jurisdictionally defective.

The facial insufficiency of an accusatory instrument constitutes a jurisdictional defect and, therefore, defendant's challenge to its sufficiency must be reviewed in spite of his failure to raise the issue before the trial court (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Alejandro, 70 NY2d 133 [1987]). In addition, the challenge survives a guilty plea and a waiver [*2]of the right to appeal (see Dreyden, 15 NY3d 100; People v Kwas, 52 Misc 3d 52, 53 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Here, since defendant did not waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern the sufficiency of an information (see People v Hatton, 26 NY3d 364, 368 [2015]; People v Kalin, 12 NY3d 225, 228 [2009]; see also CPL 100.15; 100.40 [1]). While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charge, the offense and factual basis therefor must be sufficiently alleged (see People v Konieczny, 2 NY3d 569, 575 [2004]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see Konieczny, 2 NY3d at 575). Defendant raises no hearsay claim on appeal, and, even if he had, the claim would have been waived by his failure to raise it in the District Court (see Casey, 95 NY2d 354).

A person is guilty of endangering the welfare of a child when "he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" (Penal Law § 260.10 [1]). "[A] defendant must simply be aware that the conduct may likely result in harm to a child" (People v Johnson, 95 NY2d 368, 372 [2000]). The factual portion of the information involved herein alleged that defendant was guilty of endangering the welfare of a child because "defendant was in the presence of and acted in concert with Anayelys Vasquez-Uceda DOB 06/26/04, during the commission of the larceny," and that he left the specified store with the child without paying for merchandise valued at $369. The information also contains an allegation that, by defendant's actions, he knowingly acted in a manner likely to be injurious to the child's physical, mental and moral welfare. Thus, giving the information a fair and not overly restrictive or technical reading (see Casey, 95 NY2d at 360), we find that it sufficiently alleged the charge and the factual basis thereof, thereby providing defendant with enough notice to prepare a defense and avoid retrial for the same offense (see Konieczny, 2 NY3d at 575; People v Tumminello, 53 Misc 3d 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Defendant's remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, the judgment of conviction is affirmed.

ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 20, 2020