City Court of Rochester, March 7, 2019

Sandra J. Doorley, District Attorney (Timothy M. Boucher of counsel), for plaintiff.

Tim Donaher, Public Defender (Tiffany M. Spangler of counsel), for defendant.

On December 6, 2018, defendant was arraigned on accusatory instruments charging assault in the third degree and unlawful imprisonment in the second degree. At arraignment, defendant by his attorney announced that she believed the accusatories were misdemeanor complaints and not informations. Furthermore, the defendant would not consent to any adjournments, seeking presumably to avoid excludable time pursuant to CPL 30.30 (4) (b).

At arraignment, the matter was scheduled for a jury trial on February 26, 2019. No determination was made at the arraignment as to whether the accusatories were either complaints or informations. Prior to the trial date, no motions were filed by the defendant, nor did the People file any additional accusatories or supporting depositions.^[FN*]

On the day of trial the People announced readiness for trial on the charge of unlawful imprisonment only. Defendant continued to maintain the accusatory was a complaint specifically in that it was hearsay as to the identity of the defendant as the person who committed the crime. No other challenge was raised as to the accusatory. The People maintain that the accusatory is an [*2]information as the accusatory signed by Officer Costello states the source of his knowledge is based on personal knowledge and upon information and belief specifically "[m]y investigation at 20 Myrtle Hill Pk." The court reserved decision.

It is axiomatic that absent express waiver of the right to be tried by an information, a defendant may not be tried by misdemeanor complaint (People v Weinberg, 34 NY2d 429 [1974]), although the waiver need not be in writing or by express oral statement. (People v Connor, 63 NY2d 11 [1984]; see also People v Hatton, 26 NY3d 364 [2015].){**63 Misc 3d at 883}

After Connor, the Court of Appeals addressed defective informations and waiver of the right to be prosecuted by information in People v Casey (95 NY2d 354 [2000]). Casey, which factually is quite similar to the present case, stands for the following two propositions. First, relying on Weinberg and Connor, a defendant must knowingly and intelligently waive the right to be tried by misdemeanor information and secondly, when the charging document is claimed to be an information and the information is alleged to contain hearsay, the failure to file a timely motion to dismiss operates as a waiver of the hearsay claim.

Relying on Casey, both appellate and trial courts have held that a defendant, in order to preserve a hearsay objection or defect, must file a motion to dismiss the accusatory. Otherwise the failure to do so constitutes waiver of defendant's right to challenge any purported hearsay defects. This is so even though a defendant did not waive the right to be prosecuted by information. (See People v Schwartz, 59 Misc 3d 143[A], 2018 NY Slip Op 50700[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v Lamendola, 57 Misc 3d 153[A], 2017 NY Slip Op 51598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Guez, 56 Misc 3d 36 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], lv denied 30 NY3d 980 [2017]; People v Berger, 60 Misc 3d 937 [Rochester City Ct 2018]; People v Spradlin, 56 Misc 3d 742 [Ithaca City Ct 2017].)

So against this backdrop of decisional law, the issue is what standard is to be applied in determining what the accusatory is, either a misdemeanor complaint or information, and then whether it is sufficient as a matter of law.

The CPL provides that a misdemeanor complaint is a misdemeanor information, but with hearsay allegations included. (Compare CPL 100.40 [4], with CPL 100.40 [1]; see also People v Fernandez, 20 NY3d 44 [2012].) Following Casey and its progeny, the defendant's argument that the accusatory is a complaint based on hearsay fails, as no motion was made and failure to do so operates as a waiver of the argument that the accusatory is a complaint. While it could be argued that this result is inconsistent with the Weinberg holding, it is best viewed as a preservation issue under Casey or a waiver under Connor. Which is to say that to preserve the Weinberg rights, a defendant is required to do more than object; a defendant must move under Casey or risk the finding of a waiver under Connor where the defect alleged is hearsay. While admittedly not{**63 Misc 3d at 884} without doubt, and attempting to harmonize and apply existing case law, it would appear that the more appropriate evaluative standard is that of an information particularly where, as here, the officer alleges personal knowledge in some degree.

As said, the only challenge to the accusatory is the argument that the identity of the defendant as the person who committed the crime is hearsay. No other challenge was raised. Like Casey, from a facial examination of the information in this case, it is not clear that the allegation of the defendant being the person who committed the crime was not based on the officer's direct knowledge or some exception to the hearsay rule. Given defendant's waiver of [*3]that claim, and there being no other challenge, the accusatory is an information.