People v. Avila

• Decision Date: 07 December 2012
• Docket Number: No. 2012BX000916.,2012BX000916.
• Citation: 966 N.Y.S.2d 348,2012 N.Y. Slip Op. 52257,37 Misc.3d 1232
• Parties: The PEOPLE of the State of New York v. Arnold AVILA, Defendant.
• Court: New York Criminal Court

37 Misc.3d 1232
966 N.Y.S.2d 348
2012 N.Y. Slip Op. 52257

The PEOPLE of the State of New York
v.
Arnold AVILA, Defendant.

No. 2012BX000916.

Criminal Court, City of New York,
Bronx County.

Dec. 7, 2012.

Legal Aid Society of NYC (Bronx County), by Evan Sugar, Esq., Of Counsel, for Defendant.

Robert T. Johnson, District Attorney, Bronx County by ADA Peter D'Angelo, for The People.

ALVIN M. YEARWOOD, J.

It is hereby ordered that defendant's motion to dismiss the accusatory instrument for lack a facial sufficiency pursuant to CPL § 170.35(2) and pursuant to CPL § 30.30(1)(b) is denied for the reasons that follow.

The defendant is charged with violating PL § 165.05(3), unauthorized use of a motor vehicle in the third degree. The defendant has filed a motion seeking an order dismissing the accusatory instrument pursuant to CPL §§ 170.30(2) and 170.65 for lack of facial sufficiency and for violating the defendant's rights pursuant to CPL § 30.30(1)(b). The People argue the complaint is facially sufficient; that defendant's motion is time barred and that they have not violated the defendant's rights pursuant to CPL § 30.30(1)(b).

FACIAL SUFFICIENCY

For jurisdictional purposes a criminal court information is sufficient on its face when it contains non-hearsay factual allegations that establish, if true, every element of the crimes charged and the defendant's commission thereof. Criminal Procedure Law (CPL) §§ 100.15(3), 100.40(4)(b); People v. Henderson, 92 N.Y.2d 677, 679 (1999); People v. Alejandro, 70 N.Y.2d 133 (1987); People v. Dumas, 68 N.Y.2d 729 (1986). When considering a facial sufficiency claim, this Court must read the allegations in the light most favorable to the People. CPL § 170.45; People v. Jennings, 69 N.Y.2d 103, 114 (1986). In general, as long as the factual allegations of an information conform to the pleading requirements of Article 100 of the CPL, and the allegations contained in an information “give an accused sufficient notice 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. Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006];People v. Casey, 95 N.Y.2d 354, 360 [2000] ). Facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution and can be raised at any time (Casey, 95 N.Y.2d 354, 363;People v. Alejandro, 70 N.Y.2d 133 [1987] ).

Defendant moves to dismiss the information in this matter and argues the complaint is insufficient in that the People filed a superseding information that allegedly did not conform to the requirements of CPL § 170.65 which governs the replacement of a criminal court complaint with a criminal court information. In support of this position defendant argues that the People have failed to provide a “copy of the alleged contract referenced” and that no “copy of the alleged notice referenced in the accusatory instrument have been filed with the Court”, and that such omission on the part of the People results in the accusatory instrument containing unconverted hearsay allegations in the complaint.

It should be noted from the outset that with respect to this branch of defendant's motion to dismiss, defendant has not cited to any case law whatsoever in support of the position that such rental agreements and written notice allegedly sent by certified mail are required to properly convert a misdemeanor complaint that charges a defendant with violating PL § 165.05(3), unauthorized use of a motor vehicle in the third degree, into a criminal court information.

PL § 165.05(3) provides:

A person is guilty of unauthorized use of a vehicle in the third degree when:

“Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement.”

“For purposes of this section a gross deviation from the agreement' shall consist of, but not be limited to, circumstances wherein a person who having had custody of a vehicle for a period of fifteen days or less pursuant to a written agreement retains possession of such vehicle for at least seven days beyond the period specified in the agreement and continues such possession for a period of more than two days after service or refusal of attempted service of a notice in person or by certified mail at an address indicated in the agreement stating (i) the date and time at which the vehicle was to have been returned under the agreement; (ii) that the owner does not consent to the continued withholding or retaining of such vehicle and...