[*2]Appeal by defendant from a judgment of the District Court, Nassau County (K. Gartner, J.), rendered April 30, 2001, convicting him, after a jury trial, of resisting arrest (Penal Law § 205.30), and imposing sentence.

Judgment of conviction unanimously reversed on the law and the accusatory instrument dismissed.

Absent allegations sufficient to establish that defendant's arrest was authorized, the superseding information charging defendant with resisting arrest was jurisdictionally insufficient (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d 133, 135). The factual portion established only that the arresting officer acted on a police radio report to the effect that a petit larceny had been committed, that the suspected perpetrator, of whom only a general description was given, could be found in a particular area, and that upon reaching the scene, the officer arrested defendant after he saw "an individual pointing to the defendant." While the arresting officer was entitled to assume the reliability of the contents of a radio bulletin from a fellow officer (People v Lypka, 36 NY2d 210, 213) and to rely upon information "furnished by private citizens who report crimes that they have witnessed or that were perpetrated against them" (People v Grams, 166 AD2d 717), the identity of defendant's arrest-scene accuser is not set forth (People v Hicks, 38 NY2d 90, 94) nor are there any other allegations establishing the individual's relationship to the offense or the basis of his or her knowledge of the perpetrator's identity. Thus, the reference to the individual is of no probative value and the remaining facts establish at most that the officer was authorized merely to detain defendant for further investigation [*3](e.g. People v Garcia, 284 AD2d 479, 480).

The People urge that a shopkeeper's supporting deposition be considered in our review of the subject instrument's facial sufficiency, to establish the citizen's identity and knowledge of the facts underlying the offense for which defendant was subject to arrest. However, the deposition, supporting a misdemeanor complaint dismissed upon the filing of the superseding information (CPL 100.50 [1]), "was neither filed with [CPL 100.40 (1) (b)], nor incorporated by reference into, the superseding information" (People v Grabinski, 189 Misc 2d 307, 308 [App Term, 9th & 10th Jud Dists]) charging defendant with resisting arrest (cf. CPL 100.15 [3]) and cannot be considered in support of the superseding information's facial sufficiency (see People v Casey, 95 NY2d 354, 361). Moreover, facts offered in support of a separate instrument charging defendant with petit larceny, whether by sworn averments in the factual portion or in an accompanying deposition, may likewise not be considered in support of the subject information (see People v Alejandro, 70 NY2d at 135). In light of this result, we need not consider defendant's remaining claim.
Decision Date: October 01, 2003