People v Gallagher (Shawn)

[*1] People v Gallagher (Shawn) 2022 NY Slip Op 51353(U) Decided on December 22, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2018-2104 W CR

The People of the State of New York, Respondent,

against

Shawn Gallagher, Appellant.

Scott M. Bishop, for appellant. Westchester County District Attorney (Brian R. Pouliot of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Town of Mount Pleasant, Westchester County (Mark A. Rubeo, J.), rendered August 9, 2018. The judgment convicted defendant, upon his plea of guilty, of harassment in the second degree, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor information with criminal contempt in the second degree (Penal Law § 215.50 [3]). Defendant pleaded guilty to harassment in the second degree in satisfaction of the accusatory instrument. On appeal, assigned counsel submitted an Anders brief (see Anders v California, 386 US 738 [1967]). Upon finding that the Anders brief was inadequate, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal (see People v Gallagher, 72 Misc 3d 126[A], 2021 NY Slip Op 50568[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). New counsel has submitted a brief arguing that the accusatory instrument charging him with criminal contempt in the second degree was facially insufficient.

At the outset, we note that "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, facial insufficiency constitutes a jurisdictional defect which cannot be [*2]forfeited by a defendant's guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]).

In order to be facially sufficient, an information, together with any supporting deposition accompanying or filed in connection with an information (see CPL 100.20, 100.40 [1] [b]), must allege nonhearsay facts of an evidentiary nature establishing, if true, each element of the charged offense and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Kalin, 12 NY3d 225, 228-229 [2009]). Although an information should be based on nonhearsay allegations, "a purported hearsay defect in an accusatory instrument is nonjurisdictional and, thus, forfeited by a guilty plea" (People v Keizer, 100 NY2d 114, 121 [2003]; see Konieczny, 2 NY3d at 575). "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]). Giving the information and supporting documents such a reading, we find that it is jurisdictionally sufficient to allege the offense of criminal contempt in the second degree.

Accordingly, the judgment of conviction is affirmed.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2022