Statement of Facts.

The defendant was charged with one count of petit larceny allegedly occurring on March

9, 2012 at approximately 11:15 A.M. at the K-Mart located at 950 Ridge Road in the Town of

Webster. The information consisted of a misdemeanor

complaint signed by Webster Police Officer Pete Scorsone and a supporting deposition, sworn to

by a Derek Christensen, an employee of K-Mart, as "loss prevention team lead". The

complaint alleged that the defendant, Annette D. Williams, took property having the approximate

value of $133.19, but does not allege that the officer witnessed the event in question. The

supporting deposition states that the actions of "the female" were observed by the said K-Mart

security person. The supporting deposition then alleges that said female was stopped by Derek

Christensen, who confronted her in the vestibule of the store. It is then alleged that the she fled

the store on foot and got into a white Nissan Pathfinder and then drove out of the parking lot onto [*2]

to Ridge Road. Mr. Christensen indicated that he then contacted 911 regarding said incident. At

1:39 P.M. he received a phone call from Officer Scorsone asking him to come to the Webster

Police Department. The supporting deposition states that upon arriving at the Webster Police

Department Mr. Christensen picked what he described as "the female" out of a photo array. The

supporting deposition goes on to say "The female in photograph number 5 is the suspect from

earlier in the day at K-Mart." At no point in the supporting deposition is the defendant identified

by name.

Defense counsel moves in her Omnibus Motions to dismiss the accusatory instrument as

being insufficient on its face pursuant to CPL 170.30(1)(a), 170.35(1)(a), 100.40(1)(b),

100.40(4)(b) and 100.40(1)( c). In addition to filing a response in opposition to said motion the

People request that the court permit the filing of an amended information, which would include

an amended supporting deposition wherein the deponent states that "The female was identified

to me as Annette D. Williams."^[FN1]

Issues Presented.

Is an information insufficient on its face if the supporting deposition fails to indicate the

name of the defendant?

Are the People entitled to file an amended information consisting of an amended

supporting deposition which sets out the name of the defendant?

Legal Analysis.

Sufficiency of Information. The defense contends that the accusatory, instrument which is [*3]

an information consisting of a complaint and supporting deposition, is defective because there

are no non-hearsay allegations in the complaint or supporting deposition as required by C.P.L.

100.40(1)( c), that set forth the name of the defendant. That argument triggers a run through the

labyrinth of sections dealing with misdemeanor complaints, informations and their sufficiency. It

is well established that "...a misdemeanor complaint can be transformed into a facially sufficient

information by factual allegations contained in a supporting deposition. (People v. Modica, 187 Mis.2d 635,636, 724 N.Y.S.2d 825,826 [2001]).C.P.L. Section 100.40(1)(b) requires that "The allegations of the factual part of the

information, together with those of any supporting depositions which may accompany it, provide

reasonable cause to believe that the defendant committed the offense charged in the accusatory

part of the information." Thus the complaint and supporting deposition may be considered together as one document. Ellis at *8 Supra. In so doing one must note the key phrase in that sub-section, which is that of "reasonable cause". That phrase is defined in C.P.L. 70.10(2) which states as follows:

" Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

C.P.L. 100.40(1)( c) requires that "Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." Thus, neither the misdemeanor complaint nor the supporting deposition should be examined independently in determining the sufficiency of an accusatory instrument. In this case the factual part of the misdemeanor complaint refers simply to "the defendant". The defendant's name is, of course, set out in the caption of that document, which means that the identity of the defendant is sufficiently set out in the factual part of the information by reference.

In addition, it has been held that

"CPL 100.15 prescribes the factual requirements of a misdemeanor complaint. In subdivision (3), the statute mandates that the complaint must contain facts of an evidentiary character supporting or tending to support the charges.' These allegationsmay be based on the personal knowledge of the deponent or upon information and belief. The statute admonishes that [n]othing contained in this section limits or affects' the requirements that an information must be supported by non-hearsay allegations' contained in the information itself and/or any supporting depositions. ... Thus, not all of [*4]the essential elemental facts must be contained within the factual portion of the misdemeanor complaint. Thus, any divergence between the facts contained in the body of the misdemeanor complaint and any supporting deposition is of no significant moment as long as the nonhearsay allegations taken from either or both the complaint and the supporting deposition make out the elements of the crime charged. Any other interpretation would eviscerate the significance of the supporting deposition as a factual document with evidentiary value."(Modica, 187 Misc 2d at 636,826)

Certainly, one would be hard pressed after a fair reading of both the misdemeanor complaint and the supporting deposition to conclude that the defendant, Annette D. Williams, was not the person identified by the K-Mart security person from the photo array. "CPL "100.40(1)(b) specifically states that the factual allegations in both the accusatory instrument and any supporting depositions may be read together to determine if there is reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information." (People v. Ellis, 31 Misc 3d 1213A, 929 N.Y.S.2d 201, 2011 NY Slip Op.50666U, *8 [2011]) In ruling on whether a misdemeanor information is sufficient on its face and is thus in accord with C.P.L. 100.40(1) a court should not place form over substance or be hyper technical in its approach, which would be "... inconsistent with the overall pleading rationale that the Court of Appeals has directed courts to apply when evaluating the sufficiency of the facts alleged in an information...." (People v. Ellis, at *10). In the instant case, the misdemeanor complaint and the supporting deposition, when read together, establish reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. CPL 100.40(1)(b). In addition there are sufficient non-hearsay allegations in the information and supporting deposition establishing every element of the offense charged and the defendant's commission thereof. CPL 100.401(1)( c).Amended Information. The original misdemeanor complaint and supporting deposition in this matter was verified on March 10, 2012 and affirmed on March 9, 2012, respectively. Subsequently to arguing the motions in this matter, the assistant district attorney provided the court an amended information, consisting of a misdemeanor complaint and supporting deposition, which were both executed on July 25, 2012. The documents in question were exactly the same as the original accusatory instruments, with the exception that the supporting deposition

contained an additional sentence which read "The female was identified to me as Annette D. Williams". Nevertheless, the People requested that said new information be filed with the court effectively superceding the original information. Defense counsel opposes the filing of the amended information.

C.P.L. 170.35(1)(a) requires the amendment of an information rather than a dismissal

for insufficiency "...where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend." Thus it has been held that "... like indictments and prosecutor's informations, informations can be amended with respect to time, place and the names of persons, but that unlike those instruments, informations do not share the limitations imposed by CPL 200.70 (2) (a) and (b)." (People v. Kurtz, 175 Misc 2d 980, 984, 670 N.Y.S.2d 1008, 1011 [1998]). In the case at hand the information has been held to be sufficient on its face. In People v. Pena (146 Misc 2d 767, 769, 552 N.Y.S.2d 543,544 [1990]) the court held that the information in that case was [*5]

"...sufficient on its face (CPL 100.15, 100.40) and thus the defect is of a type that may be cured by amendment (CPL 170.30[1][a])The defendant is clearly on notice of the crime with which he is charged since the mislabeled section in no way affects the obvious purport of the information. The proposed amendment here is a defect or error which relates to a matter of form and neither changes the theory of prosecution or prejudices the defendant on the merits ...."^[FN2]

Conclusion.

The motion of the defendant to dismiss the original information filed with the court as being insufficient on its face in violation of C.P.L. 100.15 and 100.40 is hereby denied. The application of the People to file an amended and/or superceding information is hereby granted in accordance with C.P.L. 170.35(1)(a). This constitutes the decision and order of the court.

Dated: Webster, New York

August 27, 2012

_______________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice