| People of State of New York v Sharif Daba a/k/a Sherif Daba a/k/a Manir Kiwan |
| Motion No: 2004-01509 qcr |
| Slip Opinion No: 2006 NYSlipOp 74853(U) |
| Decided on August 21, 2006 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SHARIF DABA A/K/A SHERIF DABA A/K/A MANIR KIWAN, Appellant. |
DECISION
Unopposed motion by the People for an order seeking, in effect, to resettle the order and decision, dated April 14, 2006, granted and the following is substituted therefor:
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Dorothy Chin-Brandt, J.), rendered on October 21, 2004. The judgment convicted defendant, upon his plea of guilty, of tampering with public records in the second degree.
Judgment of conviction reversed on the law, fine, if paid, remitted, the charge of tampering with public records in the second degree dismissed, and remaining counts of the accusatory instrument reinstated.
The accusatory instrument charging defendant with tampering with public records in the second degree (Penal Law § 175.20) is jurisdictionally defective since the factual part thereof does not contain allegations establishing each and every element of the offense charged (see CPL 100.40 [1]; 100.15 [3]; People v Alejandro, 70 NY2d 133 [1987]). Public records which are under the protection of the law are "papers which a public officer is required to obtain in the discharge of his official duties, which have public importance, and are of permanent value, and may serve a useful purpose, after they have been deposited in his office or with him . . ." (People v Peck, 138 NY 386, 397 [1893]). When defendant made the alleged entries to his application for an operator's license, said document was simply a "written instrument" and not yet a public record deposited with the Taxi and Limousine Commission (see Penal Law § 175.00 [3]; People v Briggins, 50 NY2d 302, 305 [1980]). The accusatory instrument does not allege that defendant tampered with the application after it was deposited with the Taxi and Limousine Commission. Therefore, the elements of the crime charged, i.e., that defendant tampered with a public record, was not sufficiently alleged in the accusatory instrument. Accordingly, the judgment of conviction must be reversed and the accusatory instrument dismissed.
In view of the foregoing determination, we need not review the remaining contention raised on appeal.
Pursuant to CPL 470.55 (2) the criminal action is restored to its pre-pleading status and the accusatory instrument is deemed to contain all of the counts and to charge all of the offenses which were charged therein at the time of entry of the plea, except for the charge of tampering with public records in the second degree.
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Presiding Justice, Appellate Term
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Associate Justice, Appellate Term
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Associate Justice, Appellate Term