City Court of Troy, April 20, 2018

James C. Knox for defendant.

Joel E. Abelove, District Attorney (George B. Sexton of counsel), for plaintiff.

The above named defendant stands charged with five counts of the crime of making a punishable false written statement, a violation of section 210.45 of the Penal Law. The defendant has filed an omnibus motion dated the 23rd day of February 2018 and the People have filed an affirmation in opposition dated the 9th day of March 2018, in response and in opposition thereto.

Defendant seeks dismissal of the pending charges on the grounds, inter alia, they are facially insufficient. Generally, an information is sufficient on its face when it substantially [*2]conforms to the requirements prescribed in CPL 100.15 and when the allegations of the factual part, together with any accompanying supporting depositions, provide reasonable cause to believe that the defendant committed the offense charged, and when the nonhearsay allegations therein establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40 [1]). As set forth in People v Casey (95 NY2d 354, 360 [2000]), the "procedural requirements for the factual portion of the local criminal court information are, simply: that it state 'facts of an evidentiary character supporting or tending to support the charges' (CPL 100.15 [3]; see CPL 100.40 [1] [a])." The Court in Casey went on to point out that "[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, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). However, each and every element of the offense or offenses charged and a defendant's commission thereof must be established by evidentiary facts (People v Alejandro, 70 NY2d 133 [1987]). Casey and its progeny did not obviate the need to allege evidentiary facts supporting each and every element of the offenses charged.

Here, the defendant has been charged with making a punishable false written statement. "A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable." (Penal Law § 210.45.) It is alleged that the defendant intentionally failed to disclose information when he completed an{**60 Misc 3d at 440} employment application which includes a form notice that false statements made therein are punishable. Specifically, it is alleged that he misrepresented his answers to questions located on page 23,^[FN1] 32,^[FN2] 34,^[FN3] and 37.^[FN4] In order to be guilty of making a punishable false written statement, the People must show the following three elements:

"1. That . . . the defendant . . . made a false statement which he[ ] did not believe to be true;

"2. That the defendant did so in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable; and

"3. That the defendant did so knowingly" (CJI2d[NY] Penal Law § 210.45).

Of concern to the court is whether the use of the notice that false statements are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law on the Rensselaer County Sheriff's Department's employment application is legally authorized.

The creation of the form notice under section 210.45 was

"designed to 'provide administrative and other government agencies with a convenient method, in connection with applications and other documents submitted to them, of demanding the truth upon pain of criminal sanctions without resort to the cumbersome procedure of requiring oaths before notaries.' Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney's Spec. Pamph. (1964), p. 376. The{**60 Misc 3d at 441} crime was drawn from Model Penal Code § 241.3(2) and former Penal Law § 1620(4).

"Special note should be taken of the statutory requirement that the document in question bear a 'legally authorized' form notice. The language on its face would appear to require independent legislation specifically authorizing the form notice to be affixed to a particular document."^[FN5] (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 210.45 at 376 [2010 ed]; see also People v Guido, 114 Misc 2d 470 [App Term, 2d Dept, 9th & 10th Jud Dists 1982] [noting that "section 210.45 of the Penal Law is only applicable to situations where a specific authorization exists for the use of an affirmation in place of a notarized form"]; People v Bromley, 85 Misc 2d 988, 990 [Nassau County Ct 1976] [finding no statutory authority to insert the form notice under Penal Law § 210.45 in a written confession made by a defendant, noting the form notice is "intended to apply to applications or other documents, submitted to governmental agencies which would otherwise require oaths before notaries"]; but see People v Sullivan, 56 NY2d 378, 380 [1982] [finding the insertion of the form notice under Penal Law § 210.45 in a search warrant application permissible as a substitute for an oath or affirmation required under the State and Federal Constitution before a search warrant may be issued upon probable cause; however, it should be noted that the Court in Sullivan did not directly address the issue of legal authorization].)

As further noted in the Practice Commentary, the legislature required the use of the form notice to be legally authorized, so as to prevent " 'any' person to affix the form notice to 'any' written instrument and thereby subject the subscriber to criminal liability." (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 210.45 at 376 [2010 ed].)

{**60 Misc 3d at 442}A review of the five accusatory instruments pending before the court demonstrates that there are no evidentiary facts in any of the accusatory instruments that the use of this particular form notice is legally authorized. The court's own research finds no statutory authority indicating that the form notice is a legally authorized use on the employment application in question. Moreover, there exists scant case law interpreting this particular statute. In order for an [*4]accusatory instrument charging making a punishable false written statement to be facially sufficient, the People were required to allege that the document containing the form notice under Penal Law § 210.45—here an employment application—is legally authorized. Viewing the allegations in a light most favorable to the People, as the court must (People v Casey, 95 NY2d at 361), these accusatory instruments utterly fail to allege that the form notice as used in the employment application is legally authorized. The failure to allege an element of the offense is a jurisdictional defect and requires dismissal. (People v Konieczny, 2 NY3d 569 [2004].)

Accordingly, the defendant's motion to dismiss the five counts of making a punishable false written statement is granted. Given the foregoing dismissal, the court will not address the defendant's motion for dismissal in the interest of justice.