People v Solito-Leon (Edwin)

[*1] People v Solito-Leon (Edwin) 2021 NY Slip Op 51174(U) Decided on December 3, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 3, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ
2020-609 OR CR

The People of the State of New York, Appellant,

against

Edwin Solito-Leon, Respondent.

Orange County District Attorney (Andrew R. Kass of counsel), for appellant. Yvonne F. Garbett, for respondent (no brief filed).

Appeal from an order of the Justice Court of the Village of Monroe, Orange County (Forrest Strauss, J.), rendered March 1, 2020. The order granted defendant's motion to dismiss the accusatory instrument on the ground that his right to a speedy trial had been violated.

ORDERED that the order is affirmed.

Defendant was charged in a misdemeanor complaint with sexual abuse in the second degree (Penal Law § 130.60 [2]), a class A misdemeanor. In the factual portion of the misdemeanor complaint, Police Officer Timothy Young alleged:

"Defendant did subject another person to sexual contact, that person being less than 14 years of age, two wit; On the aforesaid date and time Edwin Solito-Leon (DOB: 05/13/1998) did in fact subject a 13-year-old female to sexual contact while at her residence located at 136 Rye Hill Road in the Village of Monroe, County of Orange, State of New York.This complaint is based on information and belief, the source being, STATEMENT OF ADMISSION OF EDWIN SOLITO-LEON."

Annexed to the misdemeanor complaint was a signed statement by defendant in which he admitted knowing a girl who was only identified by her first name, who kissed him but he did not kiss her back. Thereafter, a supporting deposition was filed, in which H.M., the female child victim, alleged that an "Edwin Gonzalez" committed specified acts of sexual abuse in the second degree against her. A prosecutor's information was subsequently filed with the court on February 19, 2020 charging defendant with sexual abuse in the second degree. It contains an allegation that "defendant [] touch[ed] the vagina of H. M., a 13-year-old[,] while attempting to engage in further sexual contact." Annexed to the prosecutor's information is a copy of the original misdemeanor complaint and the supporting deposition of the victim.

Defendant moved to dismiss the accusatory instrument on the ground that his right to a speedy trial had been violated. The Justice Court granted the motion. This appeal by the People ensued.

A prosecutor's information, filed pursuant to CPL 100.50 (2), is defective when "the factual allegations of the original information underlying it and any supporting depositions are not legally sufficient to support the charge in the prosecutor's information" (CPL 170.35 [3] [b]), or when it otherwise fails to conform to the requirements of CPL 100.35 (see CPL 100.40 [3]; People v Hassan, 63 Misc 3d 158[A], 2019 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). To be facially sufficient, the factual allegations of an information, together with those of any supporting depositions, must "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]; see People v Ocasio, 28 NY3d 178, 180 [2016]). While the law does not require that an information contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see People v Konieczny, 2 NY3d 569, 575 [2004]) and "an accusatory instrument must be given a reasonable, not [an] overly technical reading" (id. at 576; see also People v Casey, 95 NY2d 354, 360 [2000]).

Among other things, the instrument must establish reasonable cause to believe that it is the named accused who committed the offense (see e.g. People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]; People v Rosano, 25 Misc 3d 129[A], 2009 NY Slip Op 52110[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see generally People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133 [1987]). Furthermore, an admission by a defendant may be used in an information (see generally People v Suber, 19 NY3d 247 [2012]).

Here, the factual portion of the underlying information contains a conclusory allegation that defendant committed sexual abuse in the second degree. Moreover, the supporting deposition of the 13-year-old victim names "Edwin Gonzalez" as her assailant, and there are no facts alleged in her supporting deposition establishing reasonable cause to believe that Edwin Solito-Leon was the person who had committed the offense charged. The statement by defendant [*2]does not contain an admission establishing that there was sexual contact (Penal Law § 130.00 [3]), or an admission to the sexual acts alleged by the victim in the supporting deposition so as to provide such "weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

Giving a reasonable, and not an overly technical reading of the underlying information (see People v Konieczny, 2 NY3d at 576), the allegations by the officer contained in the factual portion thereof and defendant's sworn statement annexed to the information, together with the allegations contained in the supporting deposition, fail to establish reasonable cause to believe that it was defendant who committed the crime charged (see Penal Law § 130.60 [2]; cf. People v Forsberg, 40 Misc 3d 132[A], 2013 NY Slip Op 51135[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). Where, as here, the factual allegations of the underlying information and supporting deposition are legally insufficient, the prosecutor's information is also jurisdictionally defective (see CPL 170.35 [3] [b]; 100.40 [1] [c]; 100.50 [2]; People v Stewart, 32 Misc 3d 133[A], 2011 NY Slip Op 51445[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

While a misdemeanor complaint "serves as a basis for the commencement of a criminal action, . . . it may serve as a basis for prosecution thereof only where a defendant has waived prosecution by information" (CPL 100.00 [4]; see CPL 170.65 [3]). Under the circumstances presented, the People could not be ready for trial on the misdemeanor complaint (see People v Colon, 59 NY2d 921 [1983], revg 122 Misc 2d 790 [App Term, 1st Dept 1982] for reasons stated in 110 Misc 2d 917 [Crim Ct, NY County 1981]; see also People v Wilson, 86 NY2d 753, 754-755 [1995]; People v Caussade, 162 AD2d 4 [1990]; People v Reyes, 24 Misc 3d 51 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). Consequently, the People's statement of readiness was illusory. As more than 90 days in this prosecution of a class A misdemeanor (see CPL 30.30 [1] [b]) are chargeable to the People, the Justice Court properly granted defendant's motion to dismiss the accusatory instrument on speedy trial grounds.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 3, 2021