The defendant was initially charged in a felony complaint with Criminal Mischief in the Third Degree (Penal Law § 145.05[2]) and Criminal Mischief in the Fourth Degree (Penal Law § 145.00). Upon the People's application, the felony count was dismissed, and the People served and filed a supporting deposition, charging the defendant with one count of Criminal Mischief in the Fourth Degree (Penal Law § 145.00). The defendant, in an omnibus motion dated March 4, 2025, seeks: (1) dismissal of the accusatory instrument as facially insufficient, pursuant to CPL 170.30 and 170.35, as well as on statutory speedy trial grounds (CPL 170.30[1][e]; 30.30[1][b]; 30.30[5-a]); (2) suppression of the noticed identification procedure or, in the alternative, a Wade/Dunaway hearing; (3) "voluntariness" hearings regarding any statements sought to be used in cross-examination of the defendant and any statements made to civilians; (4) preclusion of statement and identification evidence pursuant to CPL 710.30; (5) an order compelling the People to produce Brady or Vilardi materials or information; (6) preclusion of the introduction of any prior convictions or bad acts or, in the alternative, a Sandoval hearing; and (7) reservation of rights. The People filed their motion response on March 24, 2024, as well as a cross-motion [*2]for reciprocal discovery. The defendant filed a reply on March 28, 2025.

Upon review and consideration of the submissions by the parties and the law governing the charges in this matter, the defendant's motion to dismiss for facial insufficiency is granted.

The defendant was arrested on July 22, 2024, issued a desk appearance ticket ("DAT") and arraigned on a felony complaint on August 9, 2024 wherein he was charged with, Criminal Mischief in the Third Degree (Penal Law § 145.05[2]) and Criminal Mischief in the Fourth Degree (Penal Law § 145.00). The defendant was released on his own recognizance, and the case was adjourned to September 27, 2024. On September 27, 2024, there was no grand jury action and the case was adjourned to December 5, 2024. On December 5, 2024, there was again no grand jury action, the felony charge of Criminal Mischief in the Third Degree (Penal Law § 145.05[2]) was dismissed, the People served and filed a supporting deposition, and the Court deemed the accusatory instrument an information. The factual allegations in the information read,

On May 10, 2024, at approximately 10:04 a.m., in the vicinity of 3231 Richmond Avenue, in the County of Richmond, State of New York . . .

[Detective Anthony Narvaez] is informed by [B.N.] that on May 10, 2024, at approximately 9:00 a.m. at the abovementioned location, the informant observed his motor vehicle, namely, a gray 2022 Jeep BMW in a parking lot of the above-described location with no scratches on his motor vehicle.

[Detective Narvaez] is further informed by [B.N.] that on May 10, 2024, at approximately 10:04 a.m. at the abovementioned location, the informant observed his motor vehicle, namely, a gray 2022 Jeep BMW in said parking lot and observed said motor vehicle to have scratches on the driver's side door of said motor vehicle. [Detective Narvaez] is further informed by informant that the cost to repair said door exceeds two-hundred and fifty ($250) in United States currency.

[Detective Narvaez] is further informed by [B.N.], based on a review of video surveillance from the above-described parking lot, that on May 10, 2024, at approximately 10:04 a.m. the defendant approached the motor vehicle and walked around the abovementioned motor vehicle.

[Detective Narvaez] is further informed by [B.N], that informant is the lawful custodian of the abovementioned motor vehicle, and the defendant did not have permission nor authority to strike, scratch or otherwise cause damage to said property.

The case was adjourned to February 18, 2025 for trial. On February 7, 2025, the People served and filed a certificate of compliance ("COC") and certificate of trial readiness ("CTR") by uploading the documents to the New York Unified Court System's Electronic Document Delivery System ("EDDS"). On February 18, 2025, the defendant requested a motion schedule to submit a motion to dismiss. The defendant filed the instant motion on March 4, 2025, the [*3]People responded on March 24, 2025 and the defendant filed a reply on March 28, 2025.

Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. See People v Alejandro, 70 NY2d 133, 139 (1987); People v Hall, 48 NY2d 927 (1979). A charging instrument must contain two parts: an accusatory part and a factual part. CPL 100.15(1); People v Case, 42 NY2d 98, 99-100 (1977). The accusatory part "must designate the offense or offenses charged." CPL 100.15(2). The factual section must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15[3]) and "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part" (CPL 100.40[1][b]).

An information is sufficient on its face when, together with any supporting depositions, allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3), provide reasonable cause to believe that the defendant committed the offenses charged in the information and include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1)(a)-(c).

The Court, when determining an information's sufficiency, views the factual allegations as true (CPL 100.40[1][c]) and considers all reasonable inferences that may be drawn from these facts (People v Jackson, 18 NY3d 738, 747 [2012]; People v Konieczny, 2 NY3d 569, 575 [2004]). The People have the burden to ensure that the information is facially sufficient (see People v Jones, 9 NY3d 259, 261 [2007]) and conclusory allegations are insufficient (People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225, 229 [2009]; People v Dumas, 68 NY2d 729 [1986]). The required "nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself or in an annexed supporting deposition." People v Thomas, 4 NY3d 143, 146 (2005) (citations omitted); see also People v Bottari, 31 Misc 3d 90 (App Term, 2d Dept 2011).

While the burden is on the People to establish a prima facie case for the offenses charged in the accusatory instrument, this requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial." Kalin, 12 NY3d at 230. Rather, "So 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). To this end, the accusatory instrument must contain allegations that "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." Kalin, 12 NY3d at 230 (internal citations and quotations omitted). However, when the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged with nonconclusory allegations, the information is jurisdictionally defective. See Casey, 95 NY2d at 361; Alejandro, 70 NY2d at 139-140.

The defendant argues, among other things, that the allegations in the instant information, specifically that the defendant walked around the complainant's car, fail to sufficiently allege that he intentionally damaged the car. The People oppose, arguing that there are sufficient circumstantial allegations that allow the inference that the defendant's conscious objective was to cause damage to the car, and the circumstantial evidence will prove the defendant's guilt of the [*4]alleged offense beyond a reasonable doubt at trial.

Penal Law § 145.00(1) provides, "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 . . . intentionally damages property of another person." Pursuant to Penal Law § 15.05(1), "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." Therefore, to violate Penal Law § 145.00(1), the defendant must possess the specific intent to damage the property of another person. People v Summer, 64 AD2d 658, 659 (2d Dept 1978); see also People v Roberts, 140 AD2d 961 (4th Dept 1988). Consequently, unintended property damage generally does not satisfy Penal Law § 145.00(1). See People v Washington, 18 NY2d 366, 369 (1966) (throwing a garbage can at an individual but striking a car causing damage to it was insufficient to sustain conviction); People v Clark, 19 Misc 3d 134(A), 2008 NY Slip Op 50698(U), at *1 (App Term, 2d Dept, 9th & 10th Jud Dists 2008) ("Unintended property damage does not normally constitute a violation of Penal Law § 145.00" [citations omitted]). Accordingly, the People here were required to plead allegations establishing that the defendant's conscious objective was to damage the car. The allegations in the information, however, fail to sufficiently establish this element.

The People are correct that the required mental state may be alleged on the basis of a logical implication of the act itself, the defendant's conduct or upon the surrounding circumstances. See People v Bracey, 41 NY2d 296, 301 (1977); People v Stevens, 26 AD3d 396, 397 (2d Dept 2006); People v McGee, 204 AD2d 353, 354 (2d Dept 1994). In this way, the intent to damage property can readily be inferred from an allegation that a defendant caused injury or harm to property that lowered its value or usefulness by, among other things, subjecting it to physical force or contact or causing it to incur physical force or contact. For example, in In re Timothy HH., 41 AD3d 913, 914 (3d Dept 2007), the intent to damage the victim's car was inferred from the juvenile delinquent's threat to strike it with a metal pole and subsequently striking it and causing damage. Conversely, in In Re Carlos M., 32 AD3d 686, 687 (2006), the First Department held that the intent to damage property was readily inferred by the juvenile's throwing of glass vases at the intended victim, even though he also had the intent to injure his victim. The Fourth Department came to a similar conclusion in In Re Jordan R.B., 5 AD3d 1091, 1092 (2004) where the juvenile was angry, used vulgar language and punched a window twice causing it to shatter. The People may even rely on the surrounding circumstances to establish that the defendant intended to damage another's property. For example, in People v Longmore, 84 Misc 3d 127(A), 2024 NY Slip Op 51402(U), *1 (App Term 1st Dept 2024), there was sufficient circumstantial evidence that the defendant intended to damage the victim's tire where the defendant returned to the scene where he had previously assaulted the victim, bent down near her car, and, when she inspected the car after the defendant had left, she found a tire slashed and deflated where it was in proper working conduct earlier that day.

Here, in contrast, the information fails to allege that the defendant subjected the car to any sufficient force or contact to damage it but merely alleges that he walked around it. However, merely alleging that the car was damaged, even inferring that the defendant was the person who damaged it, does not lead to a reasonable inference that he scratched it intentionally or even recklessly. Because the act itself, walking around the car, does not establish intent to damage it, the conscious objective to damage the property of another would have to be established by surrounding circumstances that the defendant approached the victim's car with the [*5]conscious objective of causing scratches to it. See id. (defendant returned to the scene where he had assaulted the victim earlier); Jordan R.B., 5 AD3d at 1092 (evidence that the respondent was angry and used vulgar language). However, the People's information here does not allege any surrounding circumstances demonstrating that the defendant walked around the victim's car with the conscious objective to scratch it.

Accordingly, the requirement mental state of intent for establishing a violation of Penal Law § 145.00(1) is not sufficiently pleaded. Consequently, even in giving the information "a fair and not overly restrictive or technical reading"^[FN1] (Casey, 95 NY2d at 360), the count of Criminal Mischief in the Fourth Degree is facially insufficient because it fails to allege "facts of an evidentiary character" (CPL 100.15[3]) establishing every element of the offense charged (CPL 100.40[4][b]). Therefore, because the information fails to contain factual allegations establishing that the defendant intentionally damaged the victim's car, it is jurisdictionally defective and must be dismissed. See Clark, 19 Misc 3d 134(A) at *1.

Because the People have failed to plead factual allegations supporting the elements of the single charge of Criminal Mischief in the Fourth Degree, the defendant's motion to dismiss is granted.

The defendant's remaining contentions are rendered moot.

The foregoing constitutes the order and decision of the court.