People v Antoine

[*1] People v Antoine 2004 NY Slip Op 51574(U) Decided on August 23, 2004 District Court Of Nassau County, First District Kluewer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2004
District Court of Nassau County, First District

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff(s)

against

NORVILLE ANTOINE, Defendant(s).



NA 02945/04



Honorable Denis Dillon, District Attorney

240 Old Country Road

Mineola, NY 11501

Janis A. Parazzelli, Esq.

99 Tulip Avenue

Floral Park, NY 11001

Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument for facial insufficiency, suppressing testimony regarding property taken from Defendant, suppressing identification testimony, suppressing statements made by Defendant, precluding use at trial of Defendant's bad acts to impeach him, and authorizing the making of further motions is granted to the extent that the accusatory instrument is dismissed.

Defendant stands accused by what is labeled a "misdemeanor complaint" (see CPL 100.10[4]) of possession, with intent to sell, of an imitation controlled substance in violation of Public Health Law § 3383. By the factual part of the document (see CPL 100.15[1], 100.40[4][b]), the complainant (see CPL 100.15[1]), Police Officer Steven L. Holowitz, attests simply that, at the time and place, and on the date specified, "the defendant was in possession and did in fact sell a quantity of imitation crack cocaine to an undercover informant for a fee of $20.00 U.S. currency." Officer Holowitz does not state how he knows this to be "fact" and no supporting deposition (see CPL 100.20; see also CPL 170.65[1]) is annexed to the complaint.

In support of his application to dismiss the accusatory instrument for facial insufficiency, and in addition to noting that the accusatory part fails to specify the subdivision of Public Health Law § 3383 he is alleged to have violated (see CPL 100.15[2]), Defendant, apparently operating under the mistaken assumption that the accusatory instrument is an information (see CPL 100.10[1]), complains that the factual part fails to contain non-hearsay attestations supporting every element of the offense charged and his commission thereof (see CPL 100.15[3], 100.40[1]). The People in opposition tacitly posit that the precision of the factual part makes clear that Defendant is charged with violating subdivision 2 of Public Health Law § 3383. But, apparently also operating under the mistaken assumption that the accusatory instrument is an information, the People urge that "the information contains sworn factual allegations based upon information and belief, the source of said information and belief being the information given by an undercover police informant," and that, therefore, these allegations are "non-hearsay."

As with an information, the filing of a misdemeanor complaint commences a criminal action and is the basis for acquiring jurisdiction over the accused's person (see CPL 1.20 [4], [7], [9], [25]). The factual allegations in each type of accusatory instrument can be based either upon personal knowledge or upon information and belief (CPL 100.15[3]), but, if it is the latter, the source of the information and the basis of the belief must be set forth (cf. People ex rel Brown v. Tighe, 146 AppDiv 491, 131 NYS2d 693 [2d Dept. 1911]). Unlike an information, however, and absent a waiver, a misdemeanor complaint cannot serve as a basis for prosecution (see CPL 100.10[4]; cf. CPL 100.10[1]). Therefore, its factual allegations need not set forth non-hearsay allegations supporting every element of the offense charged and the defendant's commission thereof, and a misdemeanor complaint is facially sufficient, even if premised on hearsay, so long as by its factual part it provides reasonable cause to believe that the defendant committed the offense charged (CPL 100.40[4][b]). I conclude that the complaint filed here does not serve its required function.

The People's assertion to the contrary notwithstanding, Officer Holowitz does not set forth on what his assertions about a transaction in which he apparently did not take part are based. Indeed, he does not state that he knows the "undercover informant," let alone that he received information from the informant which he knows to be reliable. Absent indicia of reliability and absent the basis of the complainant's knowledge, the accusatory instrument is [*2]inadequate (cf. People v. Parriss, 83 NY2d 342, 610 NYS2d 464 [1994]; see People ex rel Brown v. Tighe, supra).

In light of my determination that the accusatory instrument must be dismissed, I do not reach the other prongs of Defendant's motion and Defendant need not appear on September 27, 2004 as previously directed.

So Ordered.