People v Berger

[*1] People v Berger 2018 NY Slip Op 28226 Decided on July 13, 2018 Family Court, Monroe County Yacknin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 13, 2018
Family Court, Monroe County

The People of the State of New York, Plaintiff,

against

Jamie L. Berger, Defendant.



CR-3189-18



For Plaintiff: Sandra J. Doorley, Monroe County District Attorney (Daniel E. Strollo, Assistant District Attorney, of counsel)

For Defendant: Timothy P. Donaher, Monroe County Public Defender (Krystian P. Opalinski, Assistant Public Defender, of counsel)
Ellen M. Yacknin, J.

DECISION AND ORDER [FN1]

INTRODUCTION

Defendant in this case was charged with criminal contempt in the second degree. The misdemeanor charge arose when defendant allegedly went to the home of a protected person in violation of a Family Court Order of Protection, and refused to leave after being told to do so repeatedly. The sworn factual allegations in the accusatory instrument were based, in part, on a police officer's "information and belief."

Defendant's attorney did not waive his client's right to be prosecuted by information. Nor did he file any written motions in this case. Instead, on the scheduled jury trial date, defense counsel moved orally to dismiss the accusatory instrument on the ground that it was jurisdictionally defective. For the reasons explained below, defendant's motion is denied.

DISCUSSION OF LAW

Under NY Criminal Procedure Law [CPL] 100.10, a defendant facing misdemeanor criminal charges can be prosecuted only by way of a jurisdictionally valid complaint or information. See People v. Dumay, 23 NY3d 518, 521-22 (2014); People v. Kalin, 12 NY3d 225, 228-29 (2009). Further, unless a defendant affirmatively waives his or her statutory right to be prosecuted by information, a jurisdictionally valid information is required to allow the [*2]prosecution to proceed. See CPL §§ 100.10(4); 100.15; 100.40; People v. Dumay, 26 NY3d at 522-23; People v. Kalin, 12 NY3d at 228.

Unquestionably, defendant in this action did not waive her right to be prosecuted by information. For that reason, the accusatory instrument in this case "must be treated as an information for the purpose of assessing its jurisdictional sufficiency." People v. Kalin, 12 NY3d at 228. See People v. Hatton, 26 NY3d 364, 368 (2015); People v. Jackson, 18 NY3d 738, 741 (2012).

Whether the accusatory instrument in this case is a jurisdictionally sufficient information depends on whether it satisfies the jurisdictional prerequisites of CPL § 100.40(1), the statutory provision that sets forth the requirements for a sufficient information. As provided by CPL § 100.40(1):

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 [and] . . . supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense; and(c) Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense . . . .

See also CPL § 100.15.

It is indisputable that the accusatory instrument in this action satisfies the requirements of CPL §§ 100.40(1)(a) and 100.40(1)(b). It is likewise indisputable that the factual allegations in the accusatory instrument, if true, establish every element of the charged crime.

On the other hand, it is also evident that the accusatory instrument does not satisfy the non-hearsay component of CPL §§ 100.40(1)(c) because the essential factual allegations were based, in part, on the complainant police officer's "information and belief" rather than on his personal knowledge. For this reason, defendant's attorney maintains, the accusatory instrument is not a jurisdictionally valid information.

Based solely on the statute's phraseology, defense counsel's argument has some logical appeal. Nonetheless, for the reasons explained by the New York Court of Appeals and reaffirmed by numerous appellate courts, his conclusion is incorrect as a matter of law.

In People v. Casey, 95 NY2d 354 (2000), the defendant, like the defendant in this action, did not exercise his right under CPL § 170.65(3) to waive prosecution by information. See People v. Casey, 95 NY2d at 359. Like the defendant in this action, the defendant in Casey did not file a timely motion to challenge an alleged hearsay defect in the accusatory instrument. See People v. Casey, 95 NY2d at 362. The Casey Court held that even though defendant did not waive his right to be prosecuted upon an information, his failure to file a timely motion challenging the alleged hearsay defect in the accusatory instrument constituted a waiver of his right to do so. See People v. Casey, 95 NY2d at 367.

In reaching its conclusion, the Court clarified that unlike the statutory provision's other components, the non-hearsay component of NY CPL § 100.40(1)(c) is not a prerequisite for a jurisdictionally sufficient information. See People v. Casey, 95 NY2d at 362. See also People v. Matthew P., 26 NY3d 332, 335 n.* (2015) (the non-hearsay component of section 100.40(1)(c) is nonjurisdictional and waivable); People v. Jackson, 18 NY3d at 741 ("'a purported hearsay defect in an accusatory instrument is nonjurisdictional'" [internal citations omitted]).

As explained by the Court:

[An] information is valid for jurisdictional purposes if it contains nonconclusory factual allegations that, if assumed to be true, address each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense.

People v. Matthew P., 26 NY3d at 335-36, quoting People v. Jackson, 18 NY3d at 741. Absent from the Court's definition of a jurisdictionally valid information is any requirement that the factual allegations must be based on non-hearsay.

Elaborating further, the Casey Court emphasized that the legislative enactment of CPL § 100.40(1)(c) neither intended nor did:

overrule our [earlier] decisions that hearsay objections to a criminal information were not jurisdictional, but waived absent preservation before trial.

People v. Casey, 95 NY2d at 365. For this reason, according to the Casey Court, a defendant's "hearsay objection ha[s] to be preserved by timely pretrial motion or it [is] waived." People v. Casey, 95 NY2d at 364. See People v. Keizer, 100 NY2d 114, 121 (2003) ("any hearsay defect [is] waived by a failure to raise the issue in a pretrial motion").

Relying on Casey and its progeny, appellate courts have repeatedly ratified the legal principle that a defendant who fails to file a timely motion challenging an alleged hearsay defect in a misdemeanor accusatory instrument waives his or her right to do so even where, as here, the defendant does not waive his or her right to be prosecuted by information. In People v. Eames, 55 Misc 3d 147(A) (App. Term, 2nd Dep't, 9th & 10th Jud. Dist. 2017), for example, the appellate court reviewed defendant's appeal from a conviction after trial. Like defendant here, the defendant in Eames did not waive his right to prosecution by information. "However," the Eames court ruled, "by failing to timely object, defendant waived any complaint that the allegations in the accusatory were hearsay." People v. Eames, 55 Misc 3d at *1.

Other appellate courts universally hold similarly. See, e.g., People v. Schwartz, 59 Misc 3d 143(A), *2 (App. Term, 2nd Dep't, 2nd, 11th & 13th Jud. Dist. 2018) (on defendant's appeal from her conviction after trial, "even if she had [raised a hearsay claim], the claim would have been waived by her failure to raise it in the Criminal Court," despite the fact that "defendant did not waive prosecution by information."); People v. Lamendola, 57 Misc 3d 153(A) (App. Term, 2nd Dep't, 9th & 10th Jud. Dist. 2017), *2 ("the failure [of an accusatory instrument] to meet [the requirements of CPL § 100.40(1)] may be asserted at any time, with the exception of a claim of hearsay which . . . is waived if it is not timely raised by motion in the trial court"); People v. Cuthbert, 56 Misc 3d 140(A), *1 (App. Term, 2nd Dep't, 9th & 10th Jud. Dist. 2017) (an alleged hearsay defect in the accusatory instrument "is waived if it is not timely raised in a motion in the trial court"); People v. Guez, 56 Misc 3d 36 (App. Term, 2nd Dep't, 11th & 13th Jud. Dist.), lv. denied 30 NY3d 980 (2017) (an alleged hearsay defect "is waived if not raised by a timely motion in the trial court"); People v. Jacobi, 51 Misc 3d 134(A), *1 (App. Term, 2nd Dep't, 9th & 10th Jud. Dist. 2016) (although defendant did not waive prosecution by information, his failure to timely object constituted a waiver of any challenge to alleged hearsay defects in the accusatory instrument); People v. Netusil, 34 Misc 3d 137(A), *1 (App. Term, 9th & 10th Jud. Dist. 2011), lv. denied 19 NY3d 1104 (2012) (although defendant did not waive prosecution by information, a claim of hearsay in the accusatory instrument is waived "if it is not raised by motion in the court in the first instance").

Defendant's attorney in this case filed no pretrial motions at all, let alone a timely motion to dismiss the accusatory instrument as defective as prescribed by CPL §§ 170.30(1)(a) and 170.30(2).[FN2] Accordingly, as in the cases discussed above, defendant's attorney's failure to file a timely motion constituted a waiver of defendant's right to challenge any alleged hearsay defect in the accusatory instrument in this action, even though defendant did not waive her right to be prosecuted upon information.

CONCLUSION

For the reasons discussed above, defendant's verbal motion to dismiss the charge of criminal contempt in the second degree is denied.

SO ORDERED.

Dated: July 13, 2018

nunc pro tunc to July 2, 2018

Hon. Ellen M. Yacknin Footnotes

Footnote 1:This Decision and Order sets forth the verbal Decision and Order issued in Court on July 2, 2018.

Footnote 2:On the trial date, defendant's attorney asserted that his previous verbal refusals to waive his client's right to be prosecuted by information comprised timely motions to dismiss the criminal charge based on the alleged hearsay defect. This argument is unavailing. Under the NY Criminal Procedure Law, a timely motion must be in writing, provide reasonable notice to the People, and be filed with 45 days of defendant's arraignment. See CPL §§ 170.30(1), 170.30(2), 170.45, 210.45, 255.20; People v. Littles, 188 AD2d 255, 256 (1st Dep't 1992), lv. denied 81 NY2d 842 (1993); People v. Knight, 58 Misc 3d 76, 78 (App. Term, 2nd Dep't, 9th & 10th Jud. Dist. 2017). For this reason, the court in People v. Spradlin, 56 Misc 3d 742 (Ithaca City Ct. 2017) found that defendant had waived his right to raise an alleged nonjurisdictional hearsay defect in the accusatory instrument because defendant's written motion was filed beyond the 45-day time limit of CPL § 255.20.