City Court of Rochester, July 13, 2018

Timothy P. Donaher, Public Defender (Krystian P. Opalinski of counsel), for defendant.

Sandra J. Doorley, District Attorney (Daniel E. Strollo of counsel), for plaintiff.

Introduction

Defendant in this case was charged with criminal contempt in the second degree. The misdemeanor charge arose when defendant allegedly went to the home of a protected person in violation of a Family Court order of protection, and refused to leave after being told to do so repeatedly. The sworn factual allegations in the accusatory instrument were based, in part, on a police officer's "information and belief."

Defendant's attorney did not waive his client's right to be prosecuted by information. Nor did he file any written motions in this case. Instead, on the scheduled jury trial date, defense counsel moved orally to dismiss the accusatory instrument on the ground that it was jurisdictionally defective. For the reasons explained below, defendant's motion is denied.^[FN1]

Discussion of Law

Under Criminal Procedure Law § 100.10, a defendant facing misdemeanor criminal charges can be prosecuted only by way of a jurisdictionally valid complaint or information. (See People v Dumay, 23 NY3d 518, 521-522 [2014]; People v Kalin, 12 NY3d 225, 228-229 [2009].) Further, unless a defendant affirmatively waives his or her statutory right to be prosecuted by information, a jurisdictionally valid information is required to allow the [*2]prosecution to proceed. (See CPL 100.10 [4]; 100.15, 100.40; People v Dumay, 23 NY3d at 522-523; People v Kalin, 12 NY3d at 228.)

Unquestionably, defendant in this action did not waive her right to be prosecuted by information. For that reason, the accusatory instrument in this case "must be treated as an information for the purpose of assessing its jurisdictional sufficiency." (People v Kalin, 12 NY3d at 228; see People v Hatton, 26 NY3d 364, 368 [2015]; People v Jackson, 18 NY3d 738, 741 [2012].){**60 Misc 3d at 939}

Whether the accusatory instrument in this case is a jurisdictionally sufficient information depends on whether it satisfies the jurisdictional prerequisites of CPL 100.40 (1), the statutory provision that sets forth the requirements for a sufficient information. As provided by CPL 100.40 (1):

"An information . . . is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in section 100.15; and

"(b) The allegations of the factual part of the information [and] . . . supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense . . . ; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense." (See also CPL 100.15.)

It is indisputable that the accusatory instrument in this action satisfies the requirements of CPL 100.40 (1) (a) and (b). It is likewise indisputable that the factual allegations in the accusatory instrument, if true, establish every element of the charged crime.

On the other hand, it is also evident that the accusatory instrument does not satisfy the nonhearsay component of CPL 100.40 (1) (c) because the essential factual allegations were based, in part, on the complainant police officer's "information and belief" rather than on his personal knowledge. For this reason, defendant's attorney maintains, the accusatory instrument is not a jurisdictionally valid information.

Based solely on the statute's phraseology, defense counsel's argument has some logical appeal. Nonetheless, for the reasons explained by the New York Court of Appeals and reaffirmed by numerous appellate courts, his conclusion is incorrect as a matter of law.

In People v Casey (95 NY2d 354 [2000]), the defendant, like the defendant in this action, did not exercise his right under CPL 170.65 (3) to waive prosecution by information. (See People v Casey, 95 NY2d at 359.) Like the defendant in this action, the defendant in Casey did not file a timely motion to challenge an alleged hearsay defect in the accusatory instrument. (See People v Casey, 95 NY2d at 362.) The Casey Court held that even though defendant did not waive his right to be prosecuted upon an information, his failure to file a timely motion challenging the alleged hearsay defect in the accusatory instrument{**60 Misc 3d at 940} constituted a waiver of his right to do so. (See People v Casey, 95 NY2d at 367.)

In reaching its conclusion, the Court clarified that unlike the statutory provision's other components, the nonhearsay component of CPL 100.40 (1) (c) is not a prerequisite for a jurisdictionally sufficient information. (See People v Casey, 95 NY2d at 362; see also People v Matthew P., 26 NY3d 332, 335 n [2015] [the nonhearsay component of section 100.40 (1) (c) is nonjurisdictional and waivable]; People v Jackson, 18 NY3d at 741 [" 'a purported hearsay defect in an accusatory instrument is nonjurisdictional' " (citations omitted)].)

As explained by the Court: "[A]n information is valid for jurisdictional purposes if it contains nonconclusory factual allegations that, if assumed to be true, address each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense." (People v Matthew P., 26 NY3d at 335-336, quoting People v Jackson, 18 NY3d at 741.) Absent from the Court's definition of a jurisdictionally valid information is any requirement that the factual allegations must be based on nonhearsay.

Elaborating further, the Casey Court emphasized that the legislative enactment of CPL 100.40 (1) (c) neither intended to nor did it "overrule our [earlier] decisions that hearsay objections to a criminal information were not jurisdictional, but waived absent preservation before trial." (People v Casey, 95 NY2d at 365.) For this reason, according to the Casey Court, a defendant's "hearsay objection ha[s] to be preserved by timely pretrial motion or it [is] waived." (People v Casey, 95 NY2d at 364; see People v Keizer, 100 NY2d 114, 121 [2003] ["any hearsay defect (is) waived by a failure to raise the issue in a pretrial motion"].)

Relying on Casey and its progeny, appellate courts have repeatedly ratified the legal principle that a defendant who fails to file a timely motion challenging an alleged hearsay defect in a misdemeanor accusatory instrument waives his or her right to do so even where, as here, the defendant does not waive his or her right to be prosecuted by information. In People v Eames (55 Misc 3d 147[A], 2017 NY Slip Op 50705[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]), for example, the Appellate Court reviewed defendant's appeal from a conviction after trial. Like defendant here, the defendant in Eames did not waive his right to prosecution by information. "However," the Eames Court ruled, "by failing to timely object, defendant {**60 Misc 3d at 941}waived any complaint that the allegations in the accusatory instrument were hearsay." (People v Eames, 2017 NY Slip Op 50705[U], *2.)

Other appellate courts universally hold similarly. (See e.g. People v Schwartz, 59 Misc 3d 143[A], 2018 NY Slip Op 50700[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [on defendant's appeal from her conviction after trial, "even if she had (raised a hearsay claim), the claim would have been waived by her failure to raise it in the Criminal Court," despite the fact that "defendant did not waive prosecution by information"]; People v Lamendola, 57 Misc 3d 153[A], 2017 NY Slip Op 51598[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ["the failure (of an accusatory instrument) to meet the( ) requirements (of CPL 100.40 [1]) may be asserted at any time, with the exception of a claim of hearsay, which . . . is waived if it is not timely raised by motion in the trial court"]; People v Cuthbert, 56 Misc 3d 140[A], 2017 NY Slip Op 51095[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [an alleged hearsay defect in the accusatory instrument "is waived if it is not timely raised in a motion in the trial court"]; People v Guez, 56 Misc 3d 36, 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], lv denied 30 NY3d 980 [2017] [an alleged hearsay defect "is waived if not raised by timely motion in the trial court"]; People v Jacobi, 51 Misc 3d 134[A], 2016 NY Slip Op 50546[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] [although defendant did not waive prosecution by information, his failure to timely object constituted a waiver of any challenge to alleged hearsay defects in the accusatory instrument]; People v Netusil, 34 Misc 3d 137[A], 2011 NY Slip Op 52410[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011], lv denied 19 NY3d 1104 [2012] [although defendant did not waive prosecution by information, a claim of hearsay in the accusatory instrument is waived "if it is not timely raised by motion in the court (in the) first instance"].)

Defendant's attorney in this case filed no pretrial motions at all, let alone a timely motion to dismiss the accusatory instrument as defective as prescribed by CPL 170.30 (1) (a) and (2).^[FN2] Accordingly, as in the cases discussed above, defendant's attorney's{**60 Misc 3d at 942} failure to file a timely motion constituted a waiver of defendant's right to challenge any alleged hearsay defect in the accusatory instrument in this action, even though defendant did not waive her right to be prosecuted upon information.

Conclusion

For the reasons discussed above, defendant's verbal motion to dismiss the charge of criminal contempt in the second degree is denied.