Criminal Court of the City of New York, Bronx County, March 10, 2022

The Legal Aid Society (Katherine Burton of counsel) for defendant.

Darcel D. Clark, District Attorney (Daniel Farrell of counsel), for plaintiff.

By superseding information filed on August 10, 2021, defendant is charged with two counts of criminal mischief in the fourth degree, in violation of Penal Law § 145.00 (1). By notice of motion filed on January 3, 2022, defendant seeks an order dismissing the accusatory instrument as facially insufficient. Alternatively, defendant moves for a Huntley/Dunaway hearing and other relief. The prosecution filed an affirmation in opposition on January 28, 2022.

Having reviewed the parties' submissions, the court file as well as the applicable law, the court grants defendant's motion, and dismisses the accusatory instrument for facial insufficiency.

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v Case, 42 NY2d 98, 99 [1977]). A legally sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL 100.15 (CPL 100.40 [1] [a]). Additionally, the factual part of a misdemeanor information "must allege facts of an evidentiary character demonstrating reasonable cause to believe [that] the defendant committed the crime charged" (People v Dumas, 68 NY2d 729, 731 [1986] [citations and internal quotation marks omitted]; CPL 100.40 [1] [b]). The information must also set forth "[n]on-hearsay [factual] allegations . . . [which], if true, [establish] every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; People v Inserra, 4 NY3d 30 [2004]).

A court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn{**75 Misc 3d at 205} from them (People v Jackson, 18 NY3d 738, 747 [2012]; People v Casey, 95 NY2d 354, 360 [2000]). However, "[f]acial sufficiency, by definition, limits the Court's analysis to the four corners of the accusatory instrument" (People v Williams, 21 Misc 3d 678, 684 [Albany City Ct 2008], citing People v Thomas, 4 NY3d 143, 146 [2005]). The Court of Appeals has instructed that where "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" (Casey at 361).

Under this legal framework, the court finds that both counts of the accusatory instrument are facially insufficient and must be dismissed.

The accusatory instrument provides, in pertinent part:

"PO VICTOR GONZALEZHERNAND . . . states that on . . . June 30, 2021 at approximately 3:00 AM [and on or about July 1, 2021, at approximately 4:15 a.m.] inside of 1560 Boone Avenue, County of the Bronx, State of New York, . . . the Defendant committed [on each date] the offense of Criminal Mischief [in the fourth degree].

"Occurrence One

"Deponent is informed by Michael Healey, that at the above time and place, informant observed defendant via video surveillance to strike the facial recognition device with a closed fist multiple times. Deponent is further informed by informant that the aforementioned facial recognition device was damaged in that the screen was cracked.

"Deponent is further informed by informant that informant is the Video Investigator for the above location. Deponent is further informed by informant that he is the lawful custodian of the above location, and as such he did not give defendant permission or authority to damage said property.

"Occurrence Two

"Deponent is informed by Michael Healey, that at the above time and place, informant observed defendant via video surveillance to kick the front door of the above location. Deponent is further informed by informant that the aforementioned door was broken in that the glass in the bottom portion of the door was shattered.

"Deponent is further informed by informant that {**75 Misc 3d at 206}informant is the Video Investigator for the above location. Deponent is further informed by informant that he is the lawful custodian of the above location, and as such he did not give defendant permission or authority to damage said property."

A person is guilty of criminal mischief in the fourth degree when, "having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . [i]ntentionally damages property of another person" (Penal Law § 145.00 [1]).

Here, defendant argues that the accusatory instrument fails to allege any facts to establish that defendant, Derrick Swann Jackson, is the person who committed the offenses charged therein. While the complainant alleges that he observed "the defendant" via video surveillance, allegedly damaging property on June 30, 2021, and July 1, 2021, the accusatory instrument is devoid of any facts, nonhearsay or otherwise, from which this court can conclude that there is reasonable cause to believe that Derrick Swann Jackson is the person depicted in the video. The complainant was not present when the events transpired. Further, the accusatory instrument does not set forth that the complainant knew Derrick Swann Jackson, or that he had ever seen him before, or offer any other facts to explain how he was able to identify the person on the video as Derrick Swann Jackson. Indeed, the accusatory instrument does not even describe whether 1560 Boone Avenue is a private residence, commercial establishment, or some other type of building, from which this court could make reasonable inferences.

In opposition, the prosecution argues that the allegations in the accusatory instrument are sufficient, and that the identification of the defendant is not relevant to this analysis. The prosecution maintains that the relationship between the parties is merely context and [*3]background, which is not necessary at this stage of the pleadings.

In the instant matter, the prosecution is mistaken. In various analogous situations, the prosecution must establish the deponent's or informant's basis for asserting that the defendant is the perpetrator (see e.g. Matter of Jonathan YY., 134 AD3d 1344, 1346 n 1 [3d Dept 2015] ["Respondent's identity as the perpetrator . . . is a fact that must be established by a nonhearsay allegation"]; People v Garcia, 48 Misc 3d 1204[A], {**75 Misc 3d at 207}2015 NY Slip Op 50955[U], *2 [Crim Ct, NY County 2015] ["The allegation that defendant is the person who threatened the complainant over the telephone is clearly a 'conclusory allegation,' since it is utterly without any factual support. Defendant's identity as the caller, if indeed he was, must therefore derive solely from some other fact that is not pled. Perhaps defendant identified himself in the call, or perhaps the complainant recognized defendant's voice. But the issue remains shrouded in mystery, since no basis for the conclusion that defendant is the caller was pled"]; People v Defreitas, 48 Misc 3d 569, 581 [Crim Ct, NY County 2015] ["It is perfectly reasonable, and neither unfair nor hypertechnical . . . that—somewhere in one of the documents set out in the CPL for this precise purpose—someone with actual knowledge swear that the defendant before the court is the person who committed the offense or offenses charged"]; People v Frankiling, 48 Misc 3d 1213[A], 2015 NY Slip Op 51107[U] [Crim Ct, Bronx County 2015]; cf. People v Zhicay, 74 Misc 3d 1218[A], 2022 NY Slip Op 50172[U] [Crim Ct, NY County, Feb. 18, 2022, Maldonado-Cruz, J.]).

In the instant matter, the court is unable to discern any fact in the accusatory instrument that might connect defendant and the complainant, or any fact that might have explained how the complainant could identify the individual portrayed on the video as defendant. Accordingly, the court finds the accusatory instrument facially insufficient, and dismisses this matter. The court need not consider defendant's other motions and directs the parties to confer about speedy trial.^[FN*]