People v Hussain (2013 NY Slip Op 51136(U))

People v Hussain (Wajid)

2013 NY Slip Op 51136(U) [40 Misc 3d 132(A)]

Decided on July 8, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Wajid Hussain, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Ruth E. Smith, J.), rendered August 15, 2011. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated.

Defendant pleaded guilty to driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On appeal, defendant contends that the accusatory instrument was facially insufficient.

Defendant's contention concerning the facial sufficiency of the accusatory instrument is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]) and, thus, was not forfeited upon his plea of guilty (see People v Konieczny, 2 NY3d 569, 573 [2004]; see also People v Lucas, 11 NY3d 218, 220 [2008]). The issue is reviewable even though defendant did not raise it in the Criminal Court (see People v Kalin, 12 NY3d 225, 229 [2009]).

The accusatory instrument was denominated neither a misdemeanor complaint nor an information. At the plea proceeding, defendant waived his right to be prosecuted by information. Under the circumstances, the accusatory instrument is to be evaluated as a misdemeanor complaint (see People v Dumay, 36 Misc 3d 159[A], 2012 NY Slip Op 51809[U] [App Term, [*2]2d, 11th & 13th Jud Dists 2012]; cf. Kalin, 12 NY3d at 228; People v Casey, 95 NY2d 354, 359 [2000]).

A misdemeanor complaint is sufficient on its face when it substantially conforms to the requirements of CPL 100.15 (3) and the allegations of its factual portion, and/or any supporting depositions, provide "reasonable cause" to believe that the defendant committed the offense charged (CPL 100.40 [4] [b]; People v Dumas, 68 NY2d 729, 731 [1986]). "[A]n accusatory instrument must be given a reasonable, not overly technical reading" (Konieczny, 2 NY3d at 576). Contrary to defendant's contention, we find that when the misdemeanor complaint herein is given such a reading, the "fair implication" (Casey, 95 NY2d at 360) of its averments provides reasonable cause to believe that defendant committed the offense charged, driving while intoxicated.