By motion dated September 13, 2011, the defendant moves for dismissal pursuant to CPL §§ 100.40, 170.30 and 170.35 on the basis of facial insufficiency of the accusatory instrument. The People opposed the motion in a response dated October 3, 2011. On November 9, 2011, the court noted that the People's response in opposition failed to address defendant's argument based on People v. Dreyden, 15 NY3d 100 (2010), and the People were given an opportunity to provide a supplemental response addressing that issue by November 29, 2011. However, the People have not served and filed a supplemental response.

In determining the motion, the court has reviewed the court file, the defendant's motion and the People's affirmation in response. For the reasons stated below, the defendant's motion to dismiss is granted.

The defendant is accused of violating an order of protection which ordered the defendant to stay away from Rosemary Carrion and to stay away from her residence. The defendant allegedly violated this order of protection, not by being near Rosemary Carrion, but by being at her residence. It is important to note that the order of protection does not specify a particular address for Rosemary Carrion's residence.

The accusatory instrument charging the defendant with criminal contempt in the second degree (PL § 215.50[3]), states in pertinent part:

Police Officer Michael Pinkney. . .says that on or about February 2, 2011 at approximately 12:40 PM at 293 Franklin Avenue County of Kings, State of New York . . .

Deponent ^[FN1] . . . observed the defendant inside the above-mentioned location, which is the residence of Rosemary Carrion.

Deponent further states that the above-described conduct by defendant was in violation of a Kings County Order of Protection, issued by Judge Green on January 14, 2011, under docket [*2]number 2011KN003025 in effect until April 14, 2011, and ordering the defendant to stay away from Rosemary Carrion as well as from the residence of Rosemary Carrion and to refrain from assaulting, harassing, menacing, intimidating or threatening the (sic) Rosemary Carrion.^[FN2]

The defendant contends, among other things, that the allegation found in the accusatory instrument that the location of the incident is the home of Rosemary Carrion—the location specified in the order of protection—is simply a conclusory statement which fails to meet the reasonable cause requirement for an accusatory instrument.

The People's response, in essence, is limited to arguing that the accusatory instrument does not contain a hearsay pleading violation. It does not address the issue of a conclusory statement or the reasonable cause requirement for an accusatory instrument.

To be sufficient on its face, an accusatory instrument must contain nonhearsay factual allegations that provide reasonable cause to believe that the defendant committed the offenses charged, and must establish, if true, every element of the offense charged. CPL §§ 100.40(1)(c),

100.40(4)(b); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). As was most recently stated by the Court of Appeals, "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, —- N.E.2d ——, 2011 WL 6153097 (NY), 2011 NY Slip Op. 08960.

In People v. Alejandro, the Court of Appeals explained, "The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law.... Unlike a felony complaint, (an information) is not followed by a preliminary hearing and a Grand Jury proceeding." Id, at 137. Because, for misdemeanors, there is no finding by a grand jury of reasonable cause to believe that a defendant committed a crime based upon legally sufficient evidence as required in CPL § 190.65(1)(a), then this protection is provided to misdemeanor defendant's by requiring that nonhearsay facts be alleged that, if true, provide reasonable cause to believe that the defendant committed the offense.

In reviewing an accusatory instrument for facial sufficiency, "(s)o 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 . . ." the court should give it "a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000). It should be noted that the facts alleged in the accusatory instrument do not need to rise to the level of establishing guilt beyond a reasonable doubt. The prima facie case requirement in a pleading is not the same as the burden of proof required at trial. See, People v. Henderson, 92 NY2d 677, 680 (1999).

As stated by the Court of Appeals in People v. Dreyden, 15 NY3d 100,102 (2010),

"The factual part of a misdemeanor complaint must allege facts of an evidentiary character' (CPL 100.15[3]) demonstrating reasonable cause' to believe the defendant committed the crime [*3]charged (CPL 100.40[4][b])" (People v. Dumas, 68 NY2d 729,731[1986]). For example, where a misdemeanor complaint charges that a defendant sold marihuana, the charge must be "supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana" (id. at 731). A mere "conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement" (People v. Kalin, 12 NY3d 225,229 [2009])."

The defendant in this case now argues that the accusatory instrument, by merely stating that the location is the residence of Rosemary Carrion, fails to contain facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged.

The defendant is correct. The ultimate issue here is whether the defendant was at Rosemary Carrion's residence. But since the order of protection does not specify a particular address for Rosemary Carrion's residence, the accusatory instrument must provide factual allegations to establish that the specific address where the defendant was found is in fact Rosemary Carrion's residence. For example, if Ms. Carrion had informed the arresting officer that 293 Franklin Avenue was her residence, and if she signed a corroborating affidavit to that effect, then the accusatory instrument would contain nonhearsay allegations of fact that establish the elements of the crime charged.

In Dreyden, the accusatory instrument contained the arresting officer's statement that the defendant possessed a gravity knife. The Court of Appeals deemed that conclusory, saying that it "failed to give any support or explanation whatsoever for the officer's belief,"(id. at 103). Similarly, the accusatory instrument in this case is based on the officer's statement that the defendant was inside the residence of Rosemary Carrion, and yet, it fails to give any support or explanation for the officer's belief that the location was Rosemary Carrion's residence. In Dreyden, the court found that the failure to give factual support or explanation for the officer's belief was a "violation of the reasonable cause' requirement (and) amounted to a jurisdictional defect" (id.). Similarly, the failure to give the basis for the officer's belief that the location alleged is Rosemary Carrion's residence is a violation of the reasonable cause requirement and is a jurisdictional defect in this case.

Accordingly, the motion to dismiss for facial insufficiency is granted.

The foregoing constitutes the decision and order of this court.

Dated: December 15, 2011

Brooklyn, New York

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Frederick C. Arriaga

Judge of the Criminal Court