Defendant is charged with Patronizing a Prostitute in the Fourth Degree (PL § 230.03). Defendant now moves to dismiss the accusatory instrument under CPL §§ 170.30(1)(a) and (f), on the ground that it is defective. For the reasons that follow, defendant's motion is granted to the extent that a hearing is ordered to examine the circumstances under which the undercover police officer verified the supporting deposition.

Defendant claims that there is a latent defect in the pleadings. Specifically, he claims that the undercover police officer did not personally complete the supporting deposition in this case. To show this, defendant has attached four exhibits to his moving papers: the supporting deposition from the instant case, as well as the supporting depositions from three other cases, each of which is ostensibly signed by the same undercover officer using only the officer's shield number, and each of which appears to have been signed in handwriting that is distinctly different from the handwriting in the other exhibits. Defendant argues that "[t]here is no guarantee [that] the accusatory instrument is not supported by hearsay" (Vitek Aff. at ¶ 5).

The People respond that the accusatory instrument should not be dismissed even if the supporting deposition was not properly verified, because the defect can be cured, either by obtaining a properly verified supporting deposition, or at a hearing to establish the authenticity of the undercover police officer's verification.

The factual portion of the superseding accusatory instrument alleges that Police Officer Thornhill-Freeman was "informed by the sworn statement of an undercover police officer No. 25133, known to the New York City Police Department and to the King's County District Attorney's Office" that, on or about January 11, 2007, at approximately 10:25 PM, at the north- east corner of Brighton 6th Street and Oceanview Avenue in Kings County, defendant, Huseyin Kaya, solicited or requested the undercover to engage in coitus with him in return for a fee. To convert the hearsay in the document, the People served and filed a form entitled "Supporting Deposition Prostitution & Patronizing A Prostitute," which was filled out by hand. The supporting deposition provides the same shield number for the undercover officer that is contained in the accusatory instrument. The undercover officer's name on the supporting deposition is written as "U/C # 25133" beneath the statement, "False statements made herein are [*2]punishable as a class A misdemeanor pursuant to section 210.45 of the penal law."

Attached as Exhibits B, C and D to defendant's moving papers are supporting deposition forms from three other Patronizing a Prostitute cases that were all ostensibly signed by undercover officer 25133.^[FN1] However, the handwriting on the signature line of each of these supporting depositions is obviously different from the handwriting in each of the others. A comparison of these three exhibits with the supporting deposition in the instant case immediately raises the question of whether undercover officer 25133 personally swore to the truthfulness of the allegations in the superseding accusatory instrument in this case, or indeed, in any of them.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. These factual allegations may be based either on the complainant's personal knowledge or on information and belief. For the information to be sufficient on its face, every element of the offenses charged and defendant's commission thereof must be supported by non-hearsay allegations in the information and/or any supporting depositions. CPL §§ 100.15(3); 100.40(1)(b); 100.40(1)(c); 70.10. An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133, 136-37 (1987); People v. Dumas, 68 NY2d 729 (1986). In order to verify a supporting deposition under CPL § 100.30(1)(d),

Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.

To protect the safety and effectiveness of undercover police officers, courts have interpreted General Construction Law § 46^[FN2] to permit an undercover to verify a complaint by signing in the form "U/C shield number [ ]"after the language of CPL § 100.30(1)(d). People v Burton, 156 Misc 2d 257, 258 (Crim Ct, Queens County 1992); see also People v Mercado, 123 Misc 2d 775, 776 (Crim Ct, New York County 1984)(undercover police officer may subscribe a supporting deposition by signing "John Doe" followed by his or her shield number). If the undercover signs in this way, his or her shield number must be contained in both the complaint and the supporting deposition, in order to ensure that the officer who verified the supporting deposition is in fact the informant who provided the factual allegations in the complaint. Otherwise, the supporting deposition will not convert the hearsay in the complaint and the People cannot effectively declare their readiness for trial. People v Zavulunov, 165 Misc 2d, 205, 208 (Crim Ct, Kings County 1995); People v Drucker, 159 Misc 2d 205,207 (Crim Ct, Bronx [*3]County 1993).^[FN3]

The facts here raise the possibility that someone other than undercover officer 25133 signed the supporting deposition. Indeed, the facts here closely resemble the facts in People v Kenrick, 162 Misc 2d 75 (Crim Ct, New York County 1994)(Parker, J.). Like this case, Kenrick was also charged with Patronizing a Prostitute in the Fourth Degree. Like this case, the informant named in the complaint against Kenrick was an undercover officer, number 23652. The People filed three supporting depositions, each purportedly signed by undercover officer 23652, but the signature on each one appeared to have been written in a different handwriting. Moreover, like this case, Kenrick submitted to the court supporting depositions filed in three other cases, each purportedly signed by undercover officer 23652 but with obvious discrepancies in the handwriting. Kenrick, 162 Misc 2d at 77. The court therefore ordered a hearing, at which the People were obliged "to call the undercover as a witness and to prove, by clear and convincing evidence, that the undercover read the complaint and signed the supporting deposition verifying the facts he or she provided." Id. at 78.

For the reasons set forth above, this court orders that a Kenrick hearing be held to determine the authenticity of the undercover police officer's signature on the supporting deposition.

This opinion constitutes the decision and order of the court.

Dated:Brooklyn, New York

October 12, 2007

_______________________________

Miriam R. Best

Judge of the Criminal Court

To:

Alex D. Smith, Esq.

The Legal Aid Society

111 Livingston Street

Brooklyn, New York 11201

ADA Marisa Mercandetti

ADA Kevin McGrath, Jr.

Kings County District Attorney's Office

350 Jay Street

Brooklyn, New York 11201