People v. Alejandro

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: HANCOCK; BELLACOSA; WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA, JJ., concur with HANCOCK; BELLACOSA, J., concurs in a separate opinion in which WACHTLER, C.J., and KAYE
• Citation: People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (N.Y. 1987)
• Decision Date: 11 June 1987
• Parties: , 511 N.E.2d 71 The PEOPLE of the State of New York, Appellant, v. Bridget ALEJANDRO, Also Known as Bridget Rodriguez, Also Known as Bridget Alejandro Morales, Respondent.

Page 927

517 N.Y.S.2d 927

70 N.Y.2d 133, 511 N.E.2d 71

The PEOPLE of the State of New York, Appellant, v. Bridget ALEJANDRO, Also Known as Bridget Rodriguez, Also Known as Bridget Alejandro Morales, Respondent.

Court of Appeals of New York.

June 11, 1987.

Patrick Henry, Dist. Atty. (Ronald E. Lipetz, Riverhead, of counsel), for appellant.

Diarmuid White, Douglaston, for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Defendant was charged with resisting arrest (Penal Law § 205.30), tried before a jury and convicted on the basis of a misdemeanor information which set forth no factual allegations establishing that the police officer was effecting an authorized arrest. The information was insufficient on its face because it lacked the necessary nonhearsay allegations which would establish, "if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 100.15). We hold that this omission constituted a jurisdictional defect which was not waived by defendant's failure to raise the issue until after completion of the trial.

The resisting arrest charge followed an altercation which erupted when police stopped defendant's car in Brentwood, New York, for alleged traffic violations. The police issued defendant five traffic summonses and charged her in separate informations with resisting arrest, reckless endangerment and assault. Contrary to the mandate of CPL 100.40(1)(c), the factual part of the misdemeanor information for resisting arrest contained no allegation supporting an essential element of the charge: that the underlying arrest was authorized. Nevertheless, defendant proceeded to trial without objection.

The jury acquitted defendant of reckless endangerment but was unable to reach a verdict on the assault charge. Defendant was convicted of resisting arrest. On her appeal, the Appellate Term unanimously reversed the conviction, on the law alone, and dismissed the information as jurisdictionally defective "inasmuch as it failed to contain any non-hearsay evidentiary allegation establishing that defendant had attempted to resist an alleged authorized arrest." The People appeal by leave of an Associate Judge of this court. For reasons which follow, we conclude that the information was properly dismissed and that the order of the Appellate Term should, therefore, be affirmed.

I

This misdemeanor information for resisting arrest was unquestionably insufficient on its face (CPL 100.40). The Penal Law defines resisting arrest as intentionally preventing or attempting to prevent a police officer "from effecting an authorized arrest" (Penal Law § 205.30 ). It is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand (People v. Peacock, 68 N.Y.2d 675, 505 N.Y.S.2d 594, 496 N.E.2d 683; People v. Carneglia, 63 A.D.2d 734, 405 N.Y.S.2d 298; People v. Harewood, 63 A.D.2d 876, 406 N.Y.S.2d 44). Thus, to comply with the statute, the factual part of the information for resisting arrest must contain "allegations establish, if true" (CPL 100.40) that the underlying arrest was authorized. These essential allegations are omitted from the information here. The factual portion pertains only to defendant's actions in resisting the arrest. ¹

II

Conceding the facial insufficiency of the information, the significant question is whether the defect is jurisdictional. We conclude that an information which fails to contain nonhearsay allegations establishing "if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40) is fatally defective. This conclusion is compelled by the natural and obvious meaning of CPL 100.40(1)(c) and CPL 100.15(3) which establish a specific requirement applicable to informations beyond what is required for the sufficiency of other accusatory instruments and by the evident legislative purpose behind such special requirement, as revealed in an analysis of the pertinent statutes and the relevant legislative history.

CPL 100.40, as it pertains to informations, provides:

"1. An information, or a count thereof, 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, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; 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 charged and the defendant's commission thereof."

CPL 100.40(1) establishes three conditions for the facial sufficiency of an information. The entire information must be in substantial conformity with CPL 100.15 which prescribes the form and content for informations and for misdemeanor and felony complaints. In addition, the factual part must meet two conditions: (1) that the allegations provide reasonable cause to believe that the defendant committed the offense (subd. ) and (2) that nonhearsay allegations establish, if true, every element of the offense charged (subd. ). The "reasonable cause" requirement for a finding of facial sufficiency (subd. ) is applicable not only to informations but to the other local criminal court accusatory instruments, simplified informations (CPL 100.40) and misdemeanor and felony complaints (CPL 100.40 100.15 see, e.g., People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686, holding that because a misdemeanor complaint alone may permit issuance of an arrest warrant "the requirement for factual allegations of an evidentiary character establishing reasonable cause should be assessed in that light"). The "prima facie case" requirement--that the factual part establish every element of the offense charged (subd. )--applies, however, to informations alone.

The legislative purpose of establishing a special and more stringent condition for a finding of facial sufficiency of an information, evident in CPL 100.40(1)(a), is reaffirmed in CPL 100.15, which provides for the form and content of informations as well as misdemeanor and felony complaints. CPL 100.15(3) prescribes that: "3 The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions " (emphasis added).

The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law. An information is often the instrument upon which the defendant is prosecuted for a misdemeanor or a petty offense. Unlike a felony complaint (CPL 180.10), it is not followed by a preliminary hearing and a Grand Jury proceeding. Thus, the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint ² (compare, CPL 190.65providing that an indictment must be supported by "legally sufficient evidence" before the Grand Jury to establish that the defendant committed the crime, i.e., "competent evidence, which, if accepted as true, would establish every element of the offense and the defendant's commission of it" ).

Because an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case, a prosecutor's hearsay statements, set forth in a bill of particulars, cannot supply necessary factual allegations to cure a deficient information. By contrast, an indictment, which presupposes that the Grand Jury, before issuance of the indictment, has found that a prima facie case exists (CPL 190.65) may, as a pleading, be corrected by a bill of particulars. Thus, People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656, and similar cases, involving the correction of factual deficiencies in indictments cannot be applied to informations and are not on point.

That it was this distinguishing characteristic of an information--its use as the sole instrument upon which the defendant could be prosecuted--which prompted the Legislature to write in the special restrictions applicable to informations found in CPL 100.40(1)(c) and 100.15(3) is confirmed by the legislative history leading to the enactment of these sections as part of the Criminal Procedure Law (L.1970, ch. 996, § 1). The 1968 Report of the Temporary Commission on the Revision of the ...