[*1]
People v Santiago
2015 NY Slip Op 50444(U) [47 Misc 3d 1205(A)]
Decided on March 31, 2015
Supreme Court, Kings County
Miller, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through April 7, 2015; it will not be published in the printed Official Reports.


Decided on March 31, 2015
Supreme Court, Kings County


The People of the State of New York

against

Jesus Santiago, Defendant.




2237/2014


For the Defendant:
Leon Schrage, Esq
26 Court Street, Suite 810
Brooklyn, NY 11242
By: Leon Schrage

For the People:
The Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
By: Theresa Robitaille


William Miller, J.

The defendant moves, pro se, to dismiss the indictment. Counsel for the defendant adopts the defendant's motion. The People oppose the defendant's application. For the reasons that follow the motion is denied.

An indictment need not mention the name of the defendant in each count so long as the indictment fulfills its statutory purpose of identifying the defendant and the charges to which he must answer. (People v Brothers 66 AD2d 954 [3d Dep't 1978]). "An indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal will prevent a subsequent charge for the same offense, and if it notifies him of the nature and character of the crime charged so that he may prepare his defense." (People v Armlin, 6 NY2d 231, 234 [1959]). Indeed, there is no particular form constitutionally mandated for an indictment so long as the indictment affords a defendant (a) fair notice of the charges made against him; (b) allows him to prepare a defense; and (c) avoid subsequent attempts to retry him for the same crime or crimes. (People v Ray, 71 NY2d 849, 850 [1988]). Incorporation by reference is sufficient to put the defendant on notice of the charges alleged and the defendant's commission thereof. (People v McDuffie, 89 AD3d 1154 [3d Dep't], lv denied 19 NY3d 964 [2012]). Where the accused is identified in the caption as the sole defendant, the body of the indictment need not repeat the full [*2]name of the accused and may property incorporate the full name of the accused, by referencing the term "the defendant", even if alleging that the accused acted in concert with others. (People ex rel. Lewis v Graham, 57 AD3d 1508 [4th Dep't], lv denied 12 NY3d 705 [2009]).

In the instant indictment, the defendant stands charged with Robbery in the First Degree, (PL §160.15[1]), and other related charges. The defendant unavailingly argues that the instant indictment is defective in that it fails to fully state his full name in each count of the indictment. Jesus Santiago is named in the caption as the sole defendant in the indictment. Each count of the indictment properly notifies the defendant of the date and factual allegations of the various crimes charged. (People v Ray, supra). Each count properly identifies Jesus Santiago as the person accused by referring to Jesus Santiago as "the defendant". (People ex rel. Lewis v Graham, supra).

The issue addressed in Lopez is not the same as the issue raised in the instant motion.(see People v Lopez, 10AD3d 264 [1st Dep't], aff'd 4 NY3d 686 [2005]). First, Lopez addresses the sufficiency of a plea to a Superior Court Information after dismissal of an indictment. Second, the trial court's dismissal of the indictment as to the defendant Lopez was based upon the reference to the co-defendant Ramirez only, in the body of the indictment. In contrast, where the appellate courts have addressed the issue raised by the instant defendant, it has been held permissible to incorporate, by reference, the sole captioned accused as "the defendant" in the body of the indictment (People ex rel. Lewis v Graham, supra).

Equally unavailing is the defendant's contention that the indictment does not contain the Grand Jury foreman's signature. Only the indictment filed with the court must contain the Grand Jury foreman's signature. (CPL §200.50[8]; People v Cooper, 241 AD2d 553 [2d Dep't], lv denied 90 NY2d 1010 [1997]). It is sufficient that the signatures appear on the accompanying face sheet or backer (People v Burch, 97 AD3d 987 [3d Dep't], lv denied 19 NY3d 1101 [2012]). The indictment filed with the court is properly authenticated (CPL §200.50; People v Cooper, supra; People v Burch, supra).

Wherefore, the defendant's motion to dismiss the indictment is denied. The foregoing constitutes the decision, opinion and order of this court.

Dated: March 31, 2015
Brooklyn, New York

_______________________
WILLIAM MILLER, J. S.C.