The defendant has moved this court by a motion which was filed with the court on

March 11, 2009 and which was duly submitted to the court for decision on March 25, 2009 for an order seeking discovery and inspection of certain listed items, and for disclosure of exculpatory material pursuant to federal and state case law, and for relief pursuant to People vs. Sandoval , 34 NY2d 371 (1974), and People v. Ventimiglia, 52 NY 2nd 350 as to the use for cross examination purposes and upon the direct case of the People of any prior criminal convictions and/or bad acts of the defendant at a trial of this action, and for the filing of a bill of particulars herein, and for an order seeking dismissal of the accusatory instruments herein charging Criminal Mischief in the 4th degree in violation of §145.00(1) of the Penal Law for being defective upon it's face, and for leave to submit any further motions necessitated by the relief obtained from this motion. The People have not opposed said motion orally or by any answering affidavit or affirmation and after due deliberation, the court determines the defendant's motion as follows:

The defendant's motion for discovery and inspection is granted as to paragraph 1 of the defendant's moving papers.

Paragraph 2(a) of the defendant's moving papers would be denied since there is no showing of materiality or necessity for supplying said items to the defense.

Paragraph 2(b) of defendant's moving papers would be in all respects granted.

Part VI of the defendant's moving papers is granted in all respects, the People having a continuing duty to disclose any such exculpatory material to the defense. [*2]

The defendant's motion for relief pursuant to People vs. Sandoval, supra and People v. Ventimiglia, supra, will be granted insofar as the People will be directed to serve upon the defendant and file with the court a list of all prior criminal convictions and/or bad acts of the defendant which they intend to use for cross examination purposes or upon the direct case of the People at a trial of this action. Such list shall be served and filed by a date to be fixed by the court within three days of trial. At such time, the court will determine which, if any, of said list may be used for such purposes at the trial of this action. Pending said in camera ruling, said motion would be in all other respects denied.

The defendant's motion for police reports and arrest reports as listed in part VIII of defendant's moving papers would be granted as to any exculpatory material, but any other pre-trial discovery would be denied. The People will be reminded to comply with the procedure outlined in the Criminal Procedure Law for disclosure of such materials at the time of trial.

The defendant's request for a bill of particulars will be denied subject to any motion directed toward the People's response to the defendant's demand filed herein.

The defendant's motion for discovery and inspection will be denied with leave to renew upon a showing of demand, refusal and materiality.

As to the defendant's motion to dismiss the accusatory instruments herein, the accusatory instrument as to the Criminal Mischief 4th degree charge alleges in the factual portion that:

On the above stated date and time the said defendant, David R. Fist (sic), intentionally damaged the victim Richard F. Mooney Jr's cedar bushes by cutting them down from 14 feet in height to 7 feet in height. The defendant had no right to do so, and had no reasonable ground to believe he had such right. The incident occurred at 6466 martin Street, in the City of Rome, County of Oneida, State of New York. All contrary to the provisions of the statute.

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. §§ 100.15 and 100.40 Criminal Procedure Law.

The statutory charge filed against the defendant reads as follows:

§ 145.00(1) Criminal Mischief in the fourth degree

A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe he has such right, he intentionally damages property of another person.

An "information" (charging a misdemeanor or petty offense) must demonstrate "reasonable cause" and be legally sufficient for a prima facie case, a much more demanding standard than what is required for a felony complaint. People vs. Alejandro, 70 N.Y.2nd 133 (1987).

§100.15 of the Criminal Procedure Law does require that, " The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary nature supporting or tending to support the charges." The accusatory does allege all the elements of the offense upon its face. People v. Alejandro, supra. [*3]

The procedural requirements for the factual portion of a local criminal court information are, simply: that it state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the "allegations of the factual part ... together with those of any supporting depositions ... provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]); and that the "[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see, CPL 100.15 [3]).

So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see, People v. Casey, 95 NY 2nd 354, 360; People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Shea, 68 Misc 2d 271, 272; see also, People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733).

The Alejandro case actually involved a failure to satisfy the first requirement of CPL 100.40 (1) (c), in that there was a total absence of pleading of one of the elements of the crime of Resisting Arrest, i.e., that the defendant had resisted an "authorized" arrest (Penal Law §§ 205.30 [emphasis supplied]; People v Alejandro, supra, at 135-136). As noted in People v. Casey, supra, a defect as in the case at bar would be a jurisdictional non-waivable defect, as opposed to the issue as to whether the supporting deposition contains the proper non-hearsay testimony to support the charge. A defect in the supporting deposition, on the other hand, would not be jurisdictional. People v. Casey, supra.

The allegation herein does satisfy the mens rea requirement of specific intent to damage the property of another, and, therefore, would be sufficient upon its face.

Finally, it must be emphasized that the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial (see, People v Gordon, 88 NY2d 92; People v Swamp, 84 NY2d 725).

Therefore, the Court finds that the allegations in the accusatory instrument charging Criminal Mischief 4th degree as above would be sufficient upon its face. Accordingly, the defendant's motion to dismiss would be denied with leave to renew at the time of trial as to the sufficiency of the evidence at trial.

The defendant's motion to reserve the right to submit any further motions necessitated by the relief obtained from this motion would be granted pursuant to the provisions of section 255.20 (3) of the Criminal Procedure Law, but in all other respects will be denied.

The defendant's motion is granted as above stated, but in all other respects will be denied.

This will constitute the Decision and the Order of the Court.

ENTER:

DANIEL C. WILSON

ROME CITY COURT JUDGE

DATED: May 6, 2009