Defendant Jermaine Richards is charged with Criminal Contempt in the Second Degree (PL 215.50 [3]) based on Shermaine Liggions' allegation that on November 17, 2013, at approximately 8:26 PM, at a location in Brooklyn, defendant

sent [him] a text message to [his] cell phone and that [he] recognized the message came from defendant's telephone number

Defendant moves, pursuant to Criminal Procedure Law ("CPL") sections 170.30 (1) (e) and 30.30 (1) (b), for an order dismissing this prosecution on speedy trial grounds. The People oppose. For the reasons that follow, the motion is denied.

Defendant argues that the allegation here is insufficient to establish contempt because the complainant's statement that he recognized defendant's telephone number is conclusory, given that the Domestic Incident Report ("DIR"), which was filed in court in connection with the complaint, does not allege how he knew the text message was sent by defendant. In other words, even though the (hearsay) complaint sets forth the complainant's alleged basis of knowledge, because the (non-hearsay) DIR does not, the defense contends that the accusatory instrument suffers a defect and the People have exceeded the time in which they can be ready to try this case.

Although the defense does not precisely articulate the purported problem with the accusatory instrument as a potential hearsay defect, that is what the defense alleges. The People, however, may proceed to trial on a non-jurisdictionally defective information, one, in other words, that contains hearsay (People v Biamonte, 19 Misc 3d 139(A) [App Term 9th & 10th Jud Dists 2008]). People v Casey explains that a hearsay defect is not jurisdictional; and, not coincidentally, Casey also explains why the purported defect here is of a hearsay nature (People v Casey, 95 NY2d 354, 362 [2000]).

In Casey, the defendant had alleged that an accusatory instrument was jurisdictionally defective because it lacked any non-hearsay allegation that he knew about the order of protection he was alleged to have violated. The Court addressed the argument as follows:

It is not clear from a facial examination of the information whether that allegation relating to defendant's knowledge of the order was based only upon the complainant's advice (she did not aver this in the supporting deposition, however), or whether it was based upon the detective's direct knowledge or some exception to the hearsay rule, either of which would have satisfied CPL 100.40(1)(c). Thus, because it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40(1)(c), the information is subject to a motion to dismiss. (People v Casey, 95 NY2d 354, 361 [2000]) (emphasis supplied); see also People v [*2]Keizer, 100 NY2d 114, 121 [2003] [hearsay defect waived by failure to timely raise issue in a pretrial motion]).

Although the defense motion raises the facial sufficiency issue only in the context of a speedy trial motion, as opposed to an independent basis for dismissal, as required by Casey and Keizer, I will nonetheless consider it.

To be facially sufficient, an information must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3] CPL 100.40 [1] [a] see People v Allen, 92 NY2d 378 [1998]). Its "non-hearsay allegations [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.15 [3] CPL 100.40 [1] [c]). Casey advises that "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" (Casey, 95 NY2d at 360).

A DIR is a police document that a complainant in a domestic violence case completes and signs subject to the penalty of perjury (see New York City Police Department Patrol Guide, Arrest Procedure No: 208-36). As such, it meets the statutory definition of a "supporting deposition" (see CPL 100.20), and DIRs have been found sufficient to convert hearsay complaints to non-hearsay informations both on a daily basis in Criminal Court and in published decisions (see, e.g., People v Ellis, 31 Misc 3d 1213[A] [Crim Ct, Kings County 2011] People v Salamone, 24 Misc 3d 1213[A] [Crim Ct, New York County 2009] People v Modica, 187 Misc 2d 635 [Crim Ct, Richmond County 2001] cf. People v Stridiron, 175 Misc 2d 16 [Crim Ct, Queens County 1997]) [rejecting DIR that contained a date that differed from that of the complaint]). As the court in Modica explained,

if the elements of the crime or crimes charged are established by the facts contained in the DIR and the DIR, upon inspection by the court, is reasonably referable to the incident alleged in the accusatory instrument, the court may rely on the non-hearsay facts contained in the DIR in determining whether the accusatory instrument is an information (Modica, 187 Misc 2d at 638).

Defendant cites inapposite cases in which no allegation linked an alleged phone call to a defendant (People v Mohammed B., NYLJ, Jan. 15, 1997 at 29, col 6 [Crim Ct, Queens County 1997] People v Buchy, 24 Misc 3d 1232[A] [Village Court, Westchester County 2009] and People v Shaw, 2002 WL 31508942 [App Term 9th & 10th Jud Dists 2002]), or non-domestic violence cases, particularly ones in which the identity of the driver of a vehicle was at issue (see, e.g., People v Thomas, 39 Misc 3d 1212[A] [Dist Ct, Suffolk County 2013] People v Maradiaga, 36 Misc 3d 1222[A] [Dist Ct, Nassau County 2012] and People v Ramos, 17 Misc 3d 1131[A] [Crim Ct, New York County 2007]), to argue that the DIR required more than complainant's assertion that the text was from defendant. But not only is the case law, as cited above, not so demanding; the use of a DIR in this case itself demonstrates that the complainant [*3]had identified the defendant to the police as a person with whom he had an intimate relationship. Although this does not affect the People's burden of proof at trial to establish all elements of the offense, in particular, the identity of the alleged offender, for purposes of pleading, the DIR's reference to the alleged fact that complainant "was contacted by Jermaine Richards ... via text message" suffices to allege that defendant sent him the offending message.

Because the complaint, when read together with the DIR, alleges, pertinently, that the complainant received a text message from defendant, the accusatory instrument sufficiently alleges defendant's prohibited communication with complainant. Whether complainant had an adequate basis on which to believe that defendant allegedly texted him is an evidentiary matter to be resolved at trial.

For these reasons, defendant's motion to dismiss is denied.

The foregoing constitutes the decision and order of the Court.

Dated: March 25, 2014

Brooklyn, New York__________________

John T. Hecht

J.C.C.