People v Anonymous

[*1] People v Anonymous 2006 NY Slip Op 51974(U) [13 Misc 3d 1225(A)] Decided on October 17, 2006 Justice Court of Town of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 1, 2006; it will not be published in the printed Official Reports.

Decided on October 17, 2006
Justice Court of Town of Webster, Monroe County

People of the State of New York

against

Anonymous, Defendant.



xxxxx



Faye Vitagliano, Esq., Assistant District Attorney

John J. LaDuca, Esq., Attorney for Defendant

Thomas J. DiSalvo, J.

The defendant was charged with Falsely Reporting an Incident in

the Third Degree, P.L. 240.50(1) which is a Class A Misdemeanor. It was alleged that on July

30, 2006 at approximately 6:23 P.M. at Woodhull Road in the Town of Webster, the defendant,

did hide by a tree while his friend and co-defendant approached the resident at said address, Earl

A. Brundage. The friend told the resident that he had been in the woods partying with a friend in

the nearby woods and that his friend had been stabbed and needed help. As a result, Mr.

Brundage called 911 in order to seek help for the injured person. It was further alleged that the

defendant was in a location where he could observe as part of a game how Mr. Brundage would

react to this false story of a stabbed individual. Both defendants then fled the scene prior to the

arrival of the police. The defendant was subsequently apprehended by Webster Police Officer

David A. Herrle. While at the defendant's home on July 30, 2006 at about 7:00 P.M. in the

Town of Webster, the officer observed what appeared to him to be a cannabis plant in a pot on a [*2]

stool in the backyard. The officer then charged the defendant with Growing Cannabis Without a

License in violation of P.H.L. 3382, which is Class A Misdemeanor.

Misdemeanor complaints, as defined by C.P.L. 100.10(4), were filed in Webster Justice

Court on both charges. However, a supporting deposition signed by Mr. Brundage was filed

along with the complaint charging the defendant with Falsely Reporting An Incident in the Third

Degree, P.L. 240.50(1), which would then constitute an information as defined by C.P.L.

1.20(4) and 100.10(1)In addition, the defendant himself signed a supporting deposition

which was filed with the court. The defendant was given an appearance ticket relative to said

charge.

The defendant appeared in court for arraignment with his attorney on August 16, 2006.

The case was adjourned for argument of motions to September 20, 2006. Prior to that time

defense counsel filed omnibus motions, which among other things requested the dismissal of the

charges against the defendant as being insufficient on their face, pursuant to C.P.L. 140.45.

Issues Presented.

Is an information charging the defendant with Falsely Reporting an Incident in the Third

Degree, Pursuant to P.L. 240.50(1) sufficient on its face, pursuant to C.P.L. 100.40(1) and C.P.L.

140.45, if it alleges only that the defendant observed the actions of an individual reporting an

incident known by both individuals not to have happened?

Has a facially sufficient information been filed with the court charging the defendant with

Growing Cannabis Without a License?

Can the supporting deposition of a defendant be used to establish the existence of a

facially sufficient information pursuant to C.P.L. 100.40(1)? [*3]

Legal Analysis

A. Falsely Reporting an Incident in the Third Degree.

P.L. 240.50(1) states that "A person is guilty of falsely reporting an incident in the third degree when,

knowing the information reported, conveyed or circulated to be false or

baseless he: (1) Initiates or circulates a false report or warning of an alleged

occurrence or impending occurrence of a crime, catastrophe, or emergency

under circumstances in which it is not unlikely that public alarm or inconvenience

will result."

The instant misdemeanor complaint, executed by Officer Herrle, who did not witness any

of the events in question, does not allege any particular action of the defendant other than that he

"...did hide by a tree while his friend approached the residence of Earl P.Brundage at the above-

listed time and date. During this time the defendant was observing how Mr. Brundage would

react to the information given by the co-defendant". In affect the defendant was charged as an

accomplice. However, the supporting deposition of Earl P. Brundage, fails to make any mention

of the defendant herein.

Penal Law Section 20.00 sets out the requirements necessary for an individual to be held

responsible for the acts of another. That section states that"When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

Thus, the sine qua non of such liability is a specific act by the accomplice that in some way

furthers the actions of the individual performing the illegal act in question.

In the instant case neither the misdemeanor complaint nor the supporting deposition of

Mr. Brundage allege any specific actions of the defendant that furthers in any way the actions of

the co-defendant. However, the defendant did sign a supporting deposition in the presence of

Officer Herrle, wherein he made certain inculpatory statements. This begs the question as to

whether the defendant's supporting deposition/signed confession can be considered to be a part [*4]

of a facially sufficient information as defined by C.P.L. 1.20(4) and 100.40(1).

In the Matter of Joseph H., Jr. (4th Dept. 1996) 224 AD2d 1037, 637 NYS2d 574 the

court affirmed Family Court's refusal to dismiss a juvenile delinquency petition for facial

insufficiency that specifically incorporated by reference the respondent's verified statement as a

supporting deposition. The Court held that the incorporation by reference of said verified

statement into the petition resulted in a facially sufficient accusatory instrument.

The defendant's motion to dismiss is based on C.P.L. Section 140.45, which states as

follows: "If a local criminal court accusatory instrument filed with a local criminal court pursuant to section 140.20, 140.25 or 140.40 is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument and discharge the defendant."

C.P.L 100.40(1) states that an "information" is sufficient on its face when "(a) It substantially conforms to the requirements prescribed in Section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;

and (c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

C.P.L. 100.40(1) does not differentiate a supporting deposition given by a witness,

complainant or defendant. Nor does said section require that a misdemeanor complaint

specifically incorporate by reference a supporting deposition in order for it to comprise an

information. Nevertheless, when the misdemeanor complaint and both supporting depositions in

this case are read together, one is still left with the question as to what the defendant did that

violated the statute in question. Specifically, the verified statement/supporting deposition of the

defendant confirms that the defendant's actions, although reprehensible, did not amount to

anything more than to establish the defendant as a witness to the actions of the co-defendant

relative to the incident in question.

Thus the accusatory instrument not only failed to establish reasonable cause, as defined [*5]

by C.P.L. 70.10(2), that the defendant committed the offense charged [C.P.L 100.40(1)(b)], there

were no non-hearsay allegations presented to the court relative to said offense [C.P.L100.40(1)

( c)]. In addition, based on the facts presented to the court, it would be impossible to draw and

file an accusatory instrument which would be sufficient on its face. Thus as required by C.P.L.

140.45 the charge of Falsely Reporting an Incident in the Third Degree, P.L. 240.50(1), is hereby

dismissed.

B. Growing Cannabis Without a License.

As previously indicated, the defendant was charged, by the filing with the court of an

information, with Growing Cannabis Without a License, pursuant to Public Health Law Section

3382, which states as follows: "A person who, without being licensed so to do under this article,

grows the plant of the genus Cannabis or knowingly allows it to grow on his land without

destroying the same, shall be guilty of a class A misdemeanor." The information did not state

how the complainant officer determined that the defendant had grown the cannabis in question,

that the cannabis belonged to the defendant or how the officer knew the plant was in fact

cannabis. However the defendant did sign a supporting deposition, which contained an

inculpatory statement relative to the growing of the cannabis found by Officer Herrle.[FN1]

In any event, the verified statement of the defendant is a supporting deposition, that when

read together with the misdemeanor complaint of Officer Herrle, establishes a facially sufficient

information as defined by C.P.L. 100.40(1). See Matter of Joseph H., Jr. (4th Dept. 1996) 224

AD2d 1037, 637 NYS2d 574. Said information together with the supporting deposition

establishes in the factual part reasonable cause to believe the defendant committed the

offense charged in the accusatory part and it sets out non-hearsay allegations which establish, if

true, every element of the offense charged. Thus that portion of the defendant's motion to [*6]

dismiss the charge of Growing Cannabis Without a License, P.H.L. 3382, pursuant to C.P.L.

100.45 is hereby denied.

Conclusion.

The defendant's motion is granted in part and denied in part. The case is restored to

the court's disposition calender on November 1, 2006 at 1:00 P.M. for further proceedings on

the charge of Growing Cannabis Without a License, P.H.L. 3382. This constitutes the decision

and order of this Court.

Dated: Webster, New York

October 17, 2006

_________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice

Footnotes

Footnote 1: The defendant stated in his supporting deposition that "On another note, I will never grow marijuana in my backyard again."