Criminal Court of the City of New York, Bronx County

Decided on May 4, 2026

Docket No. CR-003491-26BX

David L. Goodwin, J.

[*1]

During the February 2 arraignment of this unlicensed driving case, defense counsel objected to my deeming the misdemeanor complaint to be a misdemeanor information, arguing that proof of mailing (sometimes called notice of mailing) was needed for conversion to take place. After a "lively back and forth" on the issue, Arraignment Tr. at 9, the objection was overruled, and the complaint deemed an information.

Because this issue often arises during arraignments—and because my position on the issue may be out of sync with some of my colleagues'—I write to expand on my decision at arraignment and explain why, in my view, proof of mailing generally is not needed for conversion in this kind of case. The lack of proof of mailing does not create hearsay, and hearsay is what prevents a complaint from becoming an information. Other questions that might be implicated without proof of mailing, such as facial insufficiency and the People's overall readiness for trial, are distinct from conversion.

As also explained below, however, this approach to conversion should make little practical difference to this defendant or to others similarly situated, especially in the age of discovery reform and bail reform. A defendant also remains free to attack the absence of proof of mailing on any number of theories it might implicate, or (if appropriate) to relitigate conversion later.

I.

The accusatory instrument in this case charges, among other things, third-degree [*2]aggravated unlicensed operation of a motor vehicle under V.T.L. § 511(1)(a), which requires that a defendant knew or had reason to know that his driving privileges were suspended, revoked, or withdrawn. See People v. Diomande, 88 Misc 3d 126(A), 2026 NY Slip Op. 50032(U), at *1 (App. Term, 1st Dept. 2026). The deponent officer who executed the accusatory instrument alleges that a review of the defendant's DMV abstract revealed at least one suspension for moving violations or for failing to pay a driver responsibility assessment.^FN2 Accusatory Instrument at 1-2.

The officer also briefly discusses the knowledge element, which is where the disputed issue arises. According to the officer,

the basis for believing that the defendant knew or had reason to know that his license was suspended or revoked is as follows: the defendant was unable to produce a valid driver's license and the New York State Department of Motor Vehicles mails a notice of suspension/revocation to any such person at his/her last known address.

Accusatory Instrument at 2 (emphasis added).

II.

For conversion purposes, the question is whether this paragraph, and specifically the emphasized part, contains hearsay. The answer, in my view, is no. Setting aside whatever other flaws the paragraph may suffer from, the officer's observations are not hearsay, and I did not understand counsel to be arguing otherwise.

Greatly simplified—the complexity will follow in a few moments—a misdemeanor accusatory instrument that relies on hearsay is a misdemeanor complaint, while an instrument that does not rely on hearsay, or whose hearsay has been "cured" by a supporting deposition or other document, is a misdemeanor information. In the specific context of the allegations of a misdemeanor accusatory instrument, hearsay means a statement or declaration used for its truth, where the person making the statement lacks personal knowledge and is instead passing along information relayed from another source. See People v. Slade, 37 NY3d 127, 140 (2021). Hearsay must be apparent from the four corners of the accusatory instrument to impede conversion and "render[] the information defective." Id. at 137.

Under this definition, the officer's assertion that the DMV mails a notice of suspension to a person whose privilege to drive has been suspended is not hearsay. Nothing within the four corners of the instrument suggests that this information on the DMV's practices came from another source—that the officer was, in other words, simply repeating something he had been told, rather than something he had learned and knew. There is no reference to an informant or relied-upon document. And while the Court of Appeals has addressed at length whether statements like these are enough for the purposes of facial sufficiency, the Court has not [*3]suggested that they are hearsay. See People v. Willis, 44 NY3d 14, 19, 22 (2025) (concluding, among other things, that misdemeanor complaints were not facially insufficient "simply because they did not explain how the officers knew about suspension warnings appearing on traffic summonses or about those suspensions occurring automatically (by computer) within four weeks of a defendant's failure to answer those summonses").^FN3

Nor is the statement innately or implicit hearsay. A party can assert that a person or organization tends to have a particular habit or practice without necessarily running afoul of hearsay rules, although there are plenty of other limitations placed on such evidence. See Rivera v. Anilesh, 8 NY3d 627, 633-35 (2007) (discussing habit evidence rule); see also Howard v. City of Durham, 68 F.4th 934, 950 (4th Cir. 2023) (referring to the admissibility under Fed. R. Evid. 406 of evidence of an organization or person's routine practice). While at some point the officer here must have learned about the DMV's practice, "[k]nowledge acquired through others may still be personal knowledge" so long as it is not merely "the repetition of a statement made by someone else" that is "offered on the authority of the out-of-court declarant." Agfa-Gevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1523 (7th Cir. 1989) (Posner, J.). And to the extent some kinds of non-hearsay statements must have a third-party source—for instance, those that are contoured around the acquisition of information from another source, see, e.g., People v. Farrell, 44 NY3d 1, 6 (2025)—the officer's declaration about the DMV appears to fall outside that category.

III.

That the statement is not hearsay in no way means it is without possible problems. The officer might be wrong about the DMV's practices, either generally or in this particular case. The officer might be relaying information from another source after all, despite wording suggesting to the contrary—a "latent" hearsay defect, Slade, 47 NY3d at 137, but a troubling one nonetheless. Or the officer could be correct, yet not have established an adequate basis for his knowledge, thereby calling into question the value of his statement.

At arraignment, I understood defense counsel to be invoking many of these potential flaws, all of which are well-taken: "Well, the police officer is saying he believes it's something [*4]that the . . . DMV does. He doesn't know. He may believe that to be true, but it has to be confirmed by the DMV." Arraignment Tr. at 4.

Defense counsel may be right. But counsel also argued that these defects prevent conversion, because "for something to be an information there ha[ve] to be sufficient facts of a first-party nature," and the officer's statement did not provide sufficient facts. Arraignment Tr. at 6.

That's where I disagree. In my understanding, conversion—that is, whether a misdemeanor accusatory instrument is a complaint or information^FN4—is distinct from whether the accusatory instrument is facially sufficient or otherwise adequate.

Conversion is necessary because, absent waiver, a misdemeanor prosecution cannot proceed unless a misdemeanor complaint is replaced by (or is deemed to have always been) an information. See C.P.L. §§ 100.10(4), 170.65(1); Slade, 37 NY3d at 136. But the Criminal Procedure Law's definitions of those two accusatory instruments do not specify what actually distinguishes them, let alone that the core difference is hearsay. See, e.g., C.P.L. § 1.20(4), (7) (defining misdemeanor complaint and misdemeanor information without mentioning hearsay); § 100.10(1), (4) (same).

The primary exception is the cornerstone definition of a misdemeanor information, which is found in C.P.L. § 100.40(1)(c)—and from where the inconsistent treatment of conversion may arise. A misdemeanor information is defined in § 100.40(1)(c) solely by reference to facial sufficiency; an information must contain "[n]on-hearsay allegations" that, if true, establish "every element of the offense charged and the defendant's commission thereof." See also C.P.L. § 100.15(1), (3) (mentioning hearsay only in the context of sufficiency).

Were this definition taken at face value, an "information" would be reserved for an accusatory instrument that establishes every element of the offense through non-hearsay allegations—in other words, a fully converted and facially sufficient information. An accusatory instrument that did not do this would remain, or revert to being, a misdemeanor complaint.

Yet that is not generally how the difference between the two instruments is understood. As the Court of Appeals has repeatedly said, a misdemeanor complaint contains hearsay allegations, while a misdemeanor information must not. People v. Weinberg, 34 NY2d 429, 431 (1974).^FN5 Put [*5]another way, a misdemeanor complaint is "a misdemeanor information [] with hearsay allegations permitted." People v. Fernandez, 20 NY3d 44, 50 (2012).

The Court of Appeals's explanation provides the missing definition implied by the Criminal Procedure Law but not actually given there: the difference between the two instruments is the presence of hearsay, not whether the instruments are facially sufficient. For instance, first-party accusatory instruments—those that contain no hearsay that all—are generally considered to be informations, not complaints. See, e.g., Slade, 37 NY3d at 133 (observing the Appellate Term's decision that a first-party complaint was inherently an information); People v. Hutchinson, 80 Misc 3d 678, 680, 686 (N.Y.C. Crim. Ct., Bronx Co. 2023) (Pacheco, J.) (concluding that a first-party complaint was an information once appropriately signed); People v. Ortiz, 47 Misc 3d 1219(A), 2015 NY Slip Op. 50709(U), at *2 (N.Y.C. Crim. Ct., Kings Co. 2015) (Johnson, J.) (observing that a first-party accusatory instrument was a "first party information").^FN6

This also matches how courts generally treat misdemeanor accusatory instruments, using separate sufficiency standards for misdemeanor informations and misdemeanor complaints. See People v. Ocasio, 28 NY3d 178, 180 (2016) (addressing different sufficiency standards for complaints and informations). Separate standards would be unnecessary if a misdemeanor information were defined solely by reference to facial sufficiency; an insufficient instrument would have been a complaint all along. See C.P.L. § 170.65(1); People v. Doe, 46 Misc 3d 140(A), 2015 NY Slip Op. 50135(U), at *1 (App. Term, 1st Dept. 2015).

To the extent that any of this was only implicit in the case law, the Court of Appeals made subtext into text in People v. Williams, — NY3d —, 2025 NY Slip Op. 06535 (Nov. 25, 2025). Williams addressed the post-discovery-reform misdemeanor-case requirement that the People certify they have dismissed all facially insufficient counts of an accusatory instrument before declaring ready, holding that "dismissal of the defective count is the appropriate remedy" when the certification is incorrect. Id. at *1 (citing C.P.L. § 30.30(5-a)).

But Williams also implicated whether facial sufficiency is required for an accusatory instrument to be an information. The People had initially filed a misdemeanor complaint that lacked any facts to support one of the charged counts, which they replaced with "an information which, once again, did not include factual allegations" pertaining to that count. Id. (emphasis added). And the Court's holding—that dismissal of only the affected count was the appropriate remedy—emphasized that nothing about an inaccurate certification, or actual facial insufficiency of a count, "mandates the invalidation of the People's readiness statement." Id. at *3.

This is revealing in two ways. First, the Court acknowledged that the misdemeanor information that replaced the misdemeanor complaint was facially insufficient, as its predecessor had been, yet did not consider this to be at all remarkable. Second, the Court's core holding was premised on the conclusion that despite this defect in one of the counts, the People had still [*6]validly declared ready—something they could do only if the accusatory instrument was an information and not a complaint. See Slade, 37 NY3d at 136 ("To proceed with a prosecution, however, a misdemeanor complaint must be replaced by an information."); People v. Johnson-McLean, 71 Misc 3d 31, 35 (App. Term, 1st Dept. 2021). If conversion required that all counts be facially sufficient, then a plainly defective count in an accusatory instrument would require dismissal of the entire instrument, as it would be impossible for the People to declare ready on an unconverted misdemeanor complaint without the defendant's waiver of his right to be prosecuted by information.

All of this is a lot of text for a straightforward conclusion: conversion is just about elimination of hearsay. An accusatory instrument does not need to be facially sufficient to be deemed an information. And so an instrument like this one, which lacks hearsay with regard to the knowledge element, can still be an information even if that element may not be sufficiently made out by the facts contained in the instrument.

IV.

I close with some disclaimers.

First, myriad trial court decisions, stretching back decades, require supplemental documents to support inadequately pleaded allegations and thus to "convert" a complaint. Almost all were rendered by jurists far more seasoned than I am. Those decisions (and defense counsel here) may be right, and I may be wrong. Those decisions may also be using a different definition of "conversion" than I am (as discussed in footnote 4). As is my practice more generally, I adhere to the approach taken by the arraignment judge at any subsequent appearance on a case, so if that judge required a proof of mailing for conversion, so will I.

Second, whether a complaint is "deemed" an information may be functionally irrelevant. Judges in this county do so as an administrative matter—a check-box exercise on the march towards trial—but it is not strictly required, as conversion under C.P.L. § 170.65(1) happens by operation of law. See Johnson-McLean, 71 Misc 3d at 36 (filing of the supporting deposition stopped the speedy trial clock because the complaint was "deemed" converted as of that date); People v. Doe, 46 Misc 3d 140(A), 2015 NY Slip Op. 50135(U), at *1 (App. Term, 1st Dept. 2015) (similar). Assuming preservation of this kind of objection is even necessary, defense counsel has adequately preserved an objection to conversion, and is free to argue (if need be) via motions practice that the complaint was never actually converted.

Third, conversion is of diminished salience in the era of discovery and bail reform, as it is no longer the primary obstacle to the People's readiness or the potential difference between pretrial incarceration and freedom for many misdemeanor defendants. To the first point, the People now must also be discovery compliant in order to validly declare ready. See C.P.L. § 245.50(3). And while replacement of a complaint with an information is still the primary focus of C.P.L. § 170.70, bail reform means that far fewer misdemeanor defendants are subject to monetary securing orders. In any event, a court that thinks a misdemeanor instrument is fundamentally defective for reasons beyond conversion—for instance, if it lacks facts suggesting reasonable cause—should not "enter an order that restrains [a] defendant's liberty." Fitzpatrick v. Rosenthal, 29 AD3d 24, 30 (4th Dept. 2006); see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

Fourth and relatedly, any conclusion about conversion is emphatically not a conclusion about facial sufficiency, or whether the People are ready for trial, or really anything else. The People may need a proof of mailing to go to trial on this kind of count and on these facts, or to [*7]establish the facial sufficiency of their allegations in the context of this case. Those are matters for later, not now. And, in fact, the defense may have a reason for deferring consideration of some of those issues past the point where the People may correct them.

Fifth and finally, if the instrument is an information rather than a complaint, a defendant may benefit from the "more demanding" sufficiency standard applicable to informations, which requires a prima facie case in addition to reasonable cause. People v. Smalls, 26 NY3d 1064, 1066 (2015). In that way, the conversion process has at least some upside for a defendant, at least assuming there is any practical difference between the two standards.

* * *

Thus, for the reasons set forth above, I deemed the complaint an information at arraignment. The matter was thus adjourned for discovery compliance only.

Dated: May 4, 2026

Bronx, NY

David L. Goodwin

Judge of the Criminal Court