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Facial Sufficiency of Accusatory Instruments

In Criminal Court

STATEMENT OF QUESTIONS INVOLVIED:

  1. Whether the Accusatory Instrument that Defendant-Appellant pled guilty to, setting forth the Offense of Criminal Possession of Stolen Property in the Fifth Degree, was facially sufficient?

Answer of the Court Below: Yes.

  1. Whether the Accusatory Instrument that Defendant-Appellant pled guilty to, setting forth the Offense of Petit Larceny, was facially sufficient?

Answer of the Court Below: Yes.

  1. Whether the Accusatory Instrument that Defendant-Appellant pled guilty to, setting forth the Offense of Criminal Contempt in the Second Degree, was facially sufficient?

Answer of the Court Below: Yes.

  1. Whether the insufficiency of the Accusatory Instruments constituted Jurisdictional Defects?

Answer of the Court Below: None

STATEMENT OF ESSENTIAL FACTS

The Offenses

A.

Criminal Possession of Stolen Property

On October 3, 2013, in the Town of Harrison, New York, Defendant-Appellant was arrested for Criminal Possession of Stolen Property in the Fourth Degree, a Class E Felony, pursuant to Penal Law Section 165.45, Subdivision 1. Defendant-Appellant was arraigned the same day on a Felony Complaint, the factual portion of which states the following:

To wit, at the aforesaid date, time and place the above named criminal defendant did commit the crime of possession of stolen property in the fourth degree when he did possess property consisting of various hand and power tools as well as various protective equipment including safety glasses, gloves and rain suits in a wooden lock box owned by ERSI Construction Company and Pepsi Bottling Company which the defendant had care and control of as he was the only person to have access via a keyed lock.

THE ABOVE ALLEGATIONS OF FACT ARE MADE UPON PROBABLE CAUSE, DIRECT KNOWLEDGE AND UPON INFORMATION AND BELIEF, WITH THE SOURCE OF COMPLAINANT’S INFORMATION AND THE GROUNDS FOR HIS BELIEF BEING A POLICE INVESTIGATION AND WITNESS STATEMENT.

On March 25, 2014, the above felony charge was reduced to the misdemeanor of Criminal Possession of Stolen Property in the Fifth Degree pursuant to Penal Law Section 165.40 (3/25/14, P29-30)[1]. The resulting Misdemeanor Complaint was purportedly converted into an Information with the filing of a Supporting Deposition from the alleged owner of the property referenced in the Complaint. Said supporting deposition, a pre-printed form apparently filled out by hand, states the following:

NOTICE: THE MAKING OF A FALSE STATEMENT IN THIS INSTRUMENT IS PUNISHABLE AS A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW.

Richard Redacted affirms under penalty of perjury that he/she resides at 311 Rotterdam Industrial Park, and is the owner or other person entitled to the possession of (state premises entered unlawfully taken or possessed or damaged) various tools and equipment and the (sic) he/she has not given permission to Mr. Carl Redacted, age 47, of 17 S. Second St., Mt. Vernon, NY, to take, use, possess, enter or assume the above described property, and that the said Defendant, Carl Redacted did not have his/her permission to do so, nor did he/she have the permission of anyone entitled to grant it.

DATE: 10/03, 2013

Sworn before me this 3rd day of October, 2013.

Beneath the above quoted verbiage on the supporting deposition there is an illegible signature, followed by a second different illegible signature, followed by the name Richard Redacted, printed by hand.

On March 25, 2014, in the Town Court of Harrison, New York, before the Hon. Nelson E. Canter, T.J., after reviewing a “Misdemeanor Conviction Waiver of Rights” with his attorney, and signing it, the Defendant-Appellant entered a guilty plea to Criminal Possession of Stolen Property in the Fifth Degree, and was sentenced to five months in the County Jail.

Although said “Misdemeanor Conviction Waiver of Rights” states, at subdivision “5” thereof, “I waive the filing of any information,” said Waiver does not clearly state that the Defendant-Appellant waived his right to be prosecuted by information, nor does it state that the Defendant-Appellant consented to be prosecuted upon a misdemeanor complaint (see CPL §170.65). Additionally, there is nothing contained in the record of the Court’s proceedings on this matter indicating that the Defendant-Appellant waived his right to be prosecuted by information, or consented to be prosecuted upon a misdemeanor complaint.

B.

Petit Larceny

On October 3, 2013, in the Town of Harrison, New York, Defendant-Appellant was arrested for Petit Larceny, a Class A Misdemeanor, pursuant to Penal Law Section 155.25. Defendant-Appellant was arraigned the same day on a Misdemeanor Complaint, the factual portion of which states the following:

To wit, at the aforesaid date, time and place the above named criminal defendant did commit the crime of petit larceny when he did take property that was owned by the ERSI Construction Company. Property was placed in his vehicle by defendant. Property consisted of various hand tool, copper pipe, and copper wire.

THE ABOVE ALLEGATIONS OF FACT ARE MADE UPON PROBABLE CAUSE, DIRECT KNOWLEDGE AND UPON INFORMATION AND BELIEF, WITH THE SOURCE OF COMPLAINANT’S INFORMATION AND THE GROUNDS FOR HIS BELIEF BEING A POLICE INVESTIGATION AND WITNESS STATEMENT.

On January 7, 2014, the above Misdemeanor Complaint was purportedly converted into an Information with the filing of the Supporting Deposition from the alleged owner of the property referenced in the Misdemeanor Complaint, the same Supporting Deposition as was used on Defendant-Appellant’s charge of Criminal Possession of Stolen Property.

On March 25, 2014, in the Town Court of Harrison, New York, before the Hon. Nelson E. Canter, T.J., after reviewing a “Misdemeanor Conviction Waiver of Rights” with his attorney, and signing it, the Defendant-Appellant entered a guilty plea to Petit Larceny, and was sentenced to five months in the County Jail to run concurrent with his conviction for Criminal Possession of Stolen Property.

Although said “Misdemeanor Conviction Waiver of Rights” states, at subdivision “5” thereof, “I waive the filing of any information,” said Waiver does not clearly state that the Defendant-Appellant waived his right to be prosecuted by information, nor does it state that the Defendant-Appellant consented to be prosecuted upon a misdemeanor complaint (see CPL §170.65). Additionally, there is nothing contained in the record of the Court’s proceedings indicating that the Defendant-Appellant waived his right to be prosecuted by information, or consented to be prosecuted upon a misdemeanor complaint.

C.

Criminal Contempt

On December 28, 2013, at the Harrison, New York, Police Headquarters Building, the Defendant-Appellant was arrested for Criminal Contempt in the first degree, a class E Felony, pursuant to Penal Law Section 215.51. Defendant-Appellant was arraigned the same day on a Felony Complaint, the factual portion of which states the following:

To Witt: At above time, date and place of occurrence, defendant did violate a valid criminal court order of protection, docket number 12-477, order number 2013-000028, issued by Judge Edward J. Gaffney, on 01/03/2013 by accompanying victim into Harrison Police Headquarters to discuss an unrelated motor vehicle issue. Defendant was previously convicted of Criminal Contempt 2nd degree: disobeying a court order on September 4th, 2012.

On January 7, 2014, the above felony charge was reduced to the misdemeanor of Criminal Contempt in the Second Degree, Penal Law Section and the resulting Misdemeanor Complaint was purportedly converted into an Information with the filing of a Supporting Deposition from the alleged protected party of the order of protection referenced in the Complaint. Said supporting deposition, a pre-printed form apparently filled out by hand, states the following:

I, Colleen Redacted (victim/deponent name), state that on 12/28/13 (date) at _____________ (location of incident, in the County/City/Town/Village of Harrison, of the state of New York, the following did occur: On 12/28/13 about 1:30 I came to Harrison police dept w/ Carl drove me here to get a letter stating the car 1999 Cavalier that is registered to me that I needed to give to Motor Vehicles. The officer asked for ID and Carl gave him his and they arrested him for violating order of protection. I thought it was dissolved since I bailed him out. I never wanted the order of protection placed and tried several times to have it dismissed (sic).

On March 25, 2014, in the Town Court of Harrison, New York, before the Hon. Nelson E. Canter, T.J., after reviewing a “Misdemeanor Conviction Waiver of Rights” with his attorney, and signing it, the Defendant-Appellant entered a guilty plea to Criminal Contempt in the Second Degree, and was sentenced to five months in the County Jail to run concurrent with his convictions for Petit Larceny and Criminal Possession of Stolen Property.

Although said “Misdemeanor Conviction Waiver of Rights” states, at subdivision “5” thereof, “I waive the filing of any information,” said Waiver does not clearly state that the Defendant-Appellant waived his right to be prosecuted by information, nor does it state that the Defendant-Appellant consented to be prosecuted upon a misdemeanor complaint (see CPL §170.65). Additionally, there is nothing contained in the record of the Court’s proceedings indicating that the Defendant-Appellant waived his right to be prosecuted by information, or consented to be prosecuted upon a misdemeanor complaint.

ARGUMENT

FIRST:

Each of the Informations

Upon Which Defendant-

Appellant Pled Guilty

Were Facially Insufficient

The sufficiency of an Information is governed by CPL §§100.15 and 100.40. CPL §100.15(1) states: “An information…must contain an accusatory part and a factual part.”

CPL §100.15(3) states: “The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges…The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

CPL 100.40(1) states: “An information, or a count thereof, is sufficient on its fact 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.

A.

Criminal Possession

Of Stolen Property

One:

The Factual Parts of the

Information and the Supporting

Deposition Fail To Provide

 Reasonable Cause to Believe

That the Defendant-Appellant

Knowingly Possessed the Allegedly

Stolen Property With the Intent

To Benefit Himself or a Person Other

Than the Owner Thereof,

Or Impede the Recovery

By an Owner Thereof

The term “Possess” is defined at PL §10.00(8) as follows: “To have physical possession or otherwise exercise dominion or control over tangible property.” “To support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized. People v. Manini, 79 NY2d 561, 573 (1992).

In the case of People v. Hall, 48 NY2d 927 (1979), the Court of Appeals held:

It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime (citations omitted). In order for an information to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be alleged (citations omitted).

The Information charging Defendant-Appellant with Criminal Possession of Stolen Property alleges neither physical nor constructive possession of the “various hand and power tools as well as various protective equipment” described therein. All that is stated is that the various tools and equipment were “in a wooden lock box owned by ERSI Construction Company and Pepsi Bottling Company which the defendant had care and control of as he was the only person to have access via a keyed lock.” The statement that Defendant-Appellant had “care and control” is conclusory, and fails to provide reasonable cause to believe that Defendant-Appellant had either physical or constructive possession of the items. It does not describe how the items were possessed by Defendant-Appellant, whether he possessed the entire “wooden lock box,” or whether he removed the items from the lock box.

It is not clear whether the allegation of possession contained in the Information is based upon the personal knowledge of the complainant or upon information and belief. This defect is not cured by the supporting deposition signed by Richard Redacted, which is likewise devoid of any information regarding how, if at all, the Defendant-Appellant possessed the allegedly stolen property.

The Information and the Supporting Deposition combined fail to provide any information from which an inference can be made that the Defendant-Appellant possessed the various tools and equipment with the intent to benefit himself or a person other than the owner, or impede the recovery by an owner thereof.

Two:

The Factual Part of the

Information Fails To Provide

 Reasonable Cause to Believe

That the Defendant-Appellant

Lacked the Permission or

Authority of the Owner of

The Property to Possess It

Assuming arguendo, that the Information provides reasonable cause to believe that the Defendant-Appellant possessed the property listed therein, there is nothing in the Information, or the accompanying Supporting Deposition, that indicates that the Defendant-Appellant Knowingly possessed the property without the permission or authority of the owner thereof. In fact, the Information is very ambiguous on this point, stating, again, that the property was “in a wooden lock box owned by ERSI Construction Company and Pepsi Bottling Company which the defendant had care and control of as he was the only person to have access via a keyed lock.” It appears, based upon a plain reading of the Information, that the Defendant-Appellant may have had permission and authority to possess the property at one point, but that at some point his status changed. However, there is no information provided to explain any such change in Defendant-Appellant’s status vis a vis the property.

Again, the Supporting Deposition fails to provide any clarity. Although the signatory, Richard Redacted, claims to be the “owner or other person entitled to the possession of” the property, the Complaint states that the property is owned by the “ERSI Construction Company and Pepsi Bottling Company.” The Supporting Deposition fails to specify what, if any relationship he has to “ERSI Construction Company” and/or “Pepsi Bottling Company.” It fails to explain how or when the Defendant-Appellant had “care and control” of the property, or how or when the Defendant-Appellant “was the only person to have access via a keyed lock.”

Finally, there are no non-hearsay statements in either the Information or the Supporting Deposition to establish that either ERSI Construction Company, or Pepsi Bottling Company, or both, own the property alleged to be stolen. There are no non-hearsay statements in either document to establish what authority, if any, Richard Redacted possessed to assert that he was “the owner or other person entitled to the possession” of the property, or that Defendant-Appellant lacked permission or authority to possess the property. The factual parts of the information and the supporting deposition lack non-hearsay allegations to establish, if true, every element of the offense charged and the defendant’s commission thereof.

Conclusion

Points One & Two

In the case of People v. Alejandro, 70 13NY2d 133, (1987), the Court stated, “in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.”

The Information alleging Criminal Possession of Stolen Property, and the accompanying Supporting Deposition, fail to provide reasonable cause to believe that the Defendant-Appellant committed the offense charged, fail to establish every element of the offense charged, and fail to establish the Defendant-Appellant’s commission thereof.

Three:

The Factual Allegations

In the Information, and

In the Supporting Deposition,

Fail to Give Notice Sufficient

To Prepare a Defense,

And Are Not Adequately

Detailed to Prevent the

Defendant-Appellant from

Being Tried Twice for

The Same Offense

In the case of People v. Zambounis, 251 NY 94 (1929), the defendant appealed his conviction of printing obscene matter. The Information in the case charged as follows:

The said defendant…unlawfully possessed certain lewd, lascivious, indecent, obscene and disgusting printed matter, whereof a more particular description would be offensive to this court and improper to be spread upon the records thereof, wherefore such description is not here given.

Id., at 96.

The Court in Zambounis ruled:

This is insufficient. The name and nature of the publication is not given, neither a description of the printed matter; the dates, even, of the publication of the article are not specified. It is not necessary to set forth in detail the obscene matter, but it is necessary to describe it or identify it with some exactness. The defendant should be informed of the nature of the charge against him and of the act constituting it, not only to enable him to prepare for trial, but also to prevent him from again being tried for the same offense.

Id., at 96-97.

The Information in the case at bar suffers from the same infirmity. The factual part of the Information alleges that the Defendant-Appellant possessed “property consisting of various hand and power tools as well as various protective equipment including safety glasses, gloves, and rain suits…owned by ERSI Construction Company and Pepsi Bottling Company.” However, the Supporting Deposition states only “various tools and equipment,” and fails to identify whether the deponent is an owner or representative of ERSI Construction Company or Pepsi Bottling Company or both. Thus, the Defendant-Appellant is handicapped in his ability to challenge the authority of Redacted to claim that Defendant-Appellant lacked permission or authority to possess the property. Additionally, if Redacted only represents ERSI Construction Company, the Defendant-Appellant could find himself tried a second time for the same offense, with the Pepsi Bottling Company as the second complainant. Likewise, he could find himself charged first with possession of one parcel of tools and equipment, and later with possession of a second parcel of tools and equipment.

Conclusion

Point Three

The factual allegations in the Information, together with the Supporting Deposition, fail to give sufficient notice regarding the owner of the property, or the property alleged to be stolen, to enable the Defendant-Appellant to prepare a defense. Additionally, said documents fail to provide adequate detail to prevent the Defendant-Appellant from being tried twice for the same offense.

Four

During his Plea Allocution

Defendant-Appellant negated

An Element of

The offense charged

On March 25, 2014, during his plea allocution, the Defendant-Appellant made the following comments Judge Canter:

I’m comfortable with all that, but we just have the one issue about the tools, the majority of them are mine (3/25/15, P23).

My father left me those tools. I mean, some of them, I bought. I mean, there’s a lot of money out there (3/25/15, P24).

I agree with that, but in the same token, the Police Department also carried the tools off the property, the tools that I didn’t steal in the first place. They brought themselves into this whole thing (3/25/15, P24-25).

The Court of Appeals, in the case of People v. Lopez, 71 NY2d 662 (1988), the Court held as follows:

Thus, where a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered.

Id., at 666.

In the case at bar, rather than further inquiry to ensure understanding, and voluntariness, the Court expressed impatience with the Defendant-Appellant:

Court: I’m starting to lose my patience with you on this case. I’ve been very patient…

Defendant-Appellant: Yes, you’ve been very accommodating.

Court: and you keep coming up with different requests and some of them are reasonable, but I can tell you, this is it, take it or leave it.

(3/25/15, P29).

Defendant-Appellant, in the case at bar, has neglected to move to withdraw his plea, or vacate the judgment of conviction. Rather, Defendant-Appellant has sought to challenge the sufficiency of his plea allocution for the first time on direct appeal. The Court of Appeals has ruled that, in the “rare case” such as this, the course pursued by the Defendant-Appellant is perfectly acceptable:

In doing so, (Defendant) seeks to invoke the ‘narrow exception’ to the preservation requirement delineated in People v. Lopez (citation omitted). That exception applies only ‘in that rate case…where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” thereby imposing on the trial court ‘a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary (citation omitted).

When such a situation arises, if the trial court accepts the plea without conducting the required further inquiry, a defendant is entitled to challenge the allocution’s sufficiency on direct appeal, even if the defendant fails to make a post-judgment motion.

People v. McNair, 13 NY3d 821, 822 (2009).

Conclusion

Point Four

Because the Defendant-Appellant made statements that negated essential elements of the crime pleaded to, and because the Court failed to make further inquiry to ensure that Defendant-Appellant understood the nature of the charge and that the plea was intelligently and voluntarily entered into, despite the fact that the Defendant-Appellant raises this issue for the first time on direct appeal, the Defendant-Appellant’s plea allocution was deficient, and his plea should be vacated and the charge dismissed.

B.

Petit Larceny

One:

The Factual Parts of the

Information and the Supporting

Deposition Fail To Provide

 Reasonable Cause to Believe

That the Defendant-Appellant

Lacked the Permission or

Authority of the Owner of

The Property to Possess It

The factual part of the Information alleging Petit Larceny states that the Defendant-Appellant “did take property that was owned by the ERSI Construction Company.” The only Supporting Deposition contained in the record is the same Supporting Deposition, signed by Richard Redacted, that was used by the District Attorney to convert the Misdemeanor Complaint alleging Criminal Possession of Stolen Property into an Information.

As stated above, there are no non-hearsay statements in either the Information alleging Petit Larceny, or the Supporting Deposition to establish that ERSI Construction Company owns the property alleged to be the subject of this larceny. There are no non-hearsay statements in either document to establish what authority, if any, Richard Redacted possessed to assert that he was “the owner or other person entitled to the possession” of the property, or that Defendant-Appellant lacked permission or authority to possess the property. The factual parts of the information and the supporting deposition, once again, lack non-hearsay allegations to establish, if true, every element of the offense charged and the defendant’s commission thereof.

Conclusion

Point One

The Information alleging Petit Larceny, and the accompanying Supporting Deposition, fail to provide reasonable cause to believe that the Defendant-Appellant committed the offense charged, fail to establish every element of the offense charged, and fail to establish the Defendant-Appellant’s commission thereof [see People v. Alejandro, 70NY2d 133, (1987)].

Two:

The Factual Allegations

In the Information, and

In the Supporting Deposition,

Fail to Give Notice Sufficient

To Prepare a Defense,

And Are Not Adequately

Detailed to Prevent the

Defendant-Appellant from

Being Tried Twice for

The Same Offense

The factual part of the Information alleges that the Defendant-Appellant “did take property that was owned by the ERSI Construction Company…Property consisted of various hand and power tool, copper pipe, and copper wire.” However, the Supporting Deposition states only “various tools and equipment,” and fails to identify what, if any, association deponent has with ERSI Construction Company, whether as owner or representative.

Thus, once again, the Defendant-Appellant is handicapped in his ability to challenge the authority of Redacted to claim that Defendant-Appellant lacked permission or authority to possess the property. Additionally, if Redacted’s authority is limited to the Defendant-Appellant’s possession of “hand tools,” the Defendant-Appellant could find himself tried a second time for the same offense, for the “copper pipe and copper wire.” See People v. Zambounis, 251 NY 94, 96 (1929).

Conclusion

Point Two

The factual allegations in the Information, together with the Supporting Deposition, fail to give sufficient notice regarding the owner of the property, or the property alleged to be stolen, to enable the Defendant-Appellant to prepare a defense. Additionally, said documents fail to provide adequate detail to prevent the Defendant-Appellant from being tried twice for the same offense.

C.

Criminal Contempt

One

The Factual Parts of the

Information and the Supporting

Deposition Fail To Provide

 Reasonable Cause to Believe

That the Order of Protection

Was Valid at the Time it Was

Allegedly Violated, or that

The Defendant-Appellant

Was Aware of It

In the case of Holtzman v. Beatty, 97 AD2d 79, 82 (2nd Dept. 1983), the Court, citing  Matter of Rumaker, 646 F.2d 870, 872 (5th Cir.1980), stated the following:

In order to sustain a conviction for criminal contempt for violation of a court’s order the court’s order must be specific and the violator must be aware of such an order.

The Information, as well as the Supporting Deposition, fail to present any non-hearsay statements of fact setting forth that, at the time of the Defendant-Appellant’s arrest, there was a valid court order in place prohibiting the Defendant-Appellant from being in the presence of Colleen Redacted. Similarly, assuming arguendo that there was such an order, there are no non-hearsay statements of fact in either the Information, or the Supporting Deposition, stating that the Defendant-Appellant had notice of it.

Conclusion

The Information alleging Criminal Contempt, and the accompanying Supporting Deposition, fail to provide reasonable cause to believe that the Defendant-Appellant committed the offense charged, fail to establish every element of the offense charged, and fail to establish the Defendant-Appellant’s commission thereof [see People v. Alejandro, 70NY2d 133, (1987)].

SECOND:

The Facial Insufficiency

Of Each of the Informations

That the Defendant-Appellant

Pled Guilty to Constitute

Jurisdictional Defects.

Accordingly, Said Informations

Must Be Dismissed

          In the case of People v. Alejandro, 70 NY2d 133 (1987), the Court ruled:

The information was insufficient on its face because it lacked the necessary nonhearsay allegations which would establish, “if true, every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 100.15). We hold that this omission constituted a jurisdictional defect which was not waived by defendant’s failure to raise the issue until after completion of the trial.

          In the case of People v. Jones, 9 NY3d 259 (2007), the Court of Appeals held:

Failure to assert sufficient non-hearsay factual allegations is a jurisdictional defect.

Id., at 262.

In the case of People v. Banville, 134 AD2d 116, 119 (2nd Dept. 1988), the Court considered the question of the affect of a guilty plea on a subsequent claim of jurisdictional defect:

While there can be no doubt that a guilty plea represents an effective judicial admission by a defendant that he committed the acts charged in the accusatory instrument (citation omitted), and although a defendant, in consideration for the bargain, waives certain rights attendant to trial (citation omitted), the doctrine of forfeiture of appellate review as a consequence of a guilty plea does not extend to defects or improprieties of a jurisdictional nature (citation omitted).

We are called upon, in the context of this appeal, to address an issue which is wholly unrelated to the question of the defendant’s factual guilt. Rather, the error cited in the present case is of a jurisdictional dimension since it concerns “the essential validity of the proceedings conducted below” (citation omitted). It has long been the law of this State that a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (citation omitted). The reference in this statement of law to the “validity” of the instrument under which charges are laid, pertains not only to substantive or facial sufficiency, but also embraces the concept that certain defects of a procedural character may not be waived, disregarded or forfeited as a result of a guilty plea. Thus, in People ex rel. Battista v. Christian (249 NY 314) and later, in People v. Scott (3 NY2d 148), the right to be prosecuted by an appropriate accusatory instrument was recognized to be a nonwaivable fundamental right.

 *          *          *          *          *          *          *

Moreover, in its quest to ensure that criminal prosecutions formally comply with the mode of procedure mandated by the Constitution and statute, the Court of Appeals, in People v. Patterson (39 NY2d 288, 295), declared unequivocally that a defendant in a *120 criminal case cannot waive or even consent to error that would affect the organization of the court or the mode of proceedings proscribed by law. Stating this rule with greater force, the court elaborated: “where there [is] a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below.

Because every one of the Informations that the Defendant-Appellant pled guilty to on March 25, 2014, lacked the necessary nonhearsay allegations which would establish, “if true, every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 100.15), they were all jurisdictionally defective. As such, the defects therein are not waived by Defendant-Appellant’s guilty pleas. Finally, because the defects in said Informations “affect the organization of the court or the mode of proceedings proscribed by law” [see People v. Banville, 134 AD2d 116, 119 (2nd Dept. 1988)], they each must be dismissed.

Conclusion

Each and every one of the three (3) guilty pleas entered by the Defendant-Appellant on March 25, 2014, must be vacated, and the Accusatory Instruments for each must be dismissed.

STATEMENT REGARDING

COMMUNICATION WITH,

AND SERVICE UPON

DEFENDANT-APPELLANT

Of A COPY OF BRIEF

On February 10, 2015, I sent a copy of this brief to the Appellant-Defendant with a cover letter advising him of his right to apply to the Appellate Term, within 30 days from the date of mailing, for permission to file a pro se supplemental brief. I provided Defendant-Appellant with the mailing address of the Appellate Term as follows:

                             Appellate Term of the Supreme Court

                             State of New York

                             141 Livingston Street

                             Brooklyn, NY 11201

Lastly, I urged Defendant-Appellant to contact me if he had any questions, or issues he wished to discuss. A copy of the letter together with an Affirmation of Service is attached as Exhibit A.

SERVICE UPON

THE DISTRICT ATTORNEY

An Affirmation of Service attesting to the service of a copy of this brief together with the copy of the transcript that I received from the clerk of the trial court, upon the offices of the District Attorney, Westchester County, is attached as Exhibit B.

SERVICE UPON

THE TRIAL COURT

An Affirmation of Service attesting to the service of the following documents is attached as Exhibit C:

  1. a) A copy of the Decision & Order on Motion – Motion for Poor Person Relief and to Assign Counsel, Appellate Term Docket No. 2014-729 W Cr;
  2. b) A subpoena calling for the papers constituting the original record, and directing them to be filed with the Clerk of the Appellate Term, Ninth Judicial District.

THIS SECTION LEFT DELIBERATELY BLANK.

CERTIFICATION OF COMPLIANCE

Pursuant to Rule 670.10.3(f)

MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Times New Roman, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 5,379.

Dated: February 10, 2015

                                                                   Respectfully submitted

                                                                   ___________________________

                                                                   Michael F. Dailey

                                                                   Attorney for Defendant-Appellant

                                                                   One Riverdale Avenue

                                                                   Suite One, Mailbox Eleven

                                                                   Bronx, New York 10463

                                                                   (718)543-0100

[1] Citations to the Court Transcript will be made by indicating the date of the proceedings, followed by “P” for page, and then the page number.

Michael F. Dailey, Esq.

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