People v. Campbell

• Decision Date: 07 October 1988
• Citation: 141 Misc.2d 470,533 N.Y.S.2d 666
• Parties: PEOPLE of the State of New York, v. Hugh CAMPBELL, Defendant.
• Court: New York City Court

Page 666

533 N.Y.S.2d 666

141 Misc.2d 470

PEOPLE of the State of New York, v. Hugh CAMPBELL, Defendant.

Criminal Court of the City of New York,

New York County.

Oct. 7, 1988.

John H. Jarvis, New York City, for defendant.

Robert Morgenthau, Dist. Atty., New York County, New York City, A. Scott Bolden, Asst. Dist. Atty. of counsel.

HAROLD B. BEELER, Judge.

The issue here, of apparent first impression, is whether a defendant who enters a plea of guilty to a misdemeanor complaint thereby waives any challenge to the facial sufficiency of the accusatory instrument to which he has pled. More specifically, this court must determine whether the requirement in C.P.L. Sections 100.15(3) and 100.40(4)(b) that a misdemeanor complaint allege "facts of an evidentiary character" providing "reasonable cause to believe that the defendant committed the offense charged" is a jurisdictional prerequisite which cannot be waived, even by a plea of guilty.

Defendant in this case was arrested and charged with the Class "A" misdemeanors of Promoting Gambling in the Second Degree (P.L. 225.05) and Possession of a Gambling Device (P.L. 225.30). At his arraignment, defendant orally moved to dismiss the misdemeanor complaint on the ground that the accusatory instrument was "jurisdictionally defective" in that it failed to "allege a single fact to establish a crime was committed." The arraignment judge denied defendant's motion without prejudice to his renewing the motion in writing. Immediately thereafter, following a bench conferenc defendant entered a plea of guilty to both charges in the complaint and he was released from custody, pending sentence.

On April 25, 1988, the date scheduled for sentence, defendant was granted an adjournment for the purpose of submitting a memorandum addressing the alleged facial insufficiency of the misdemeanor complaint to which he had pled. Defendant's memorandum, in the form of a motion to set aside the verdict pursuant to C.P.L. Section 330.30(1), and to dismiss the complaint as facially insufficient under CPL Sections 100.15 and 100.40, was filed on June 6, 1988.

At the outset, the court notes that defendant's choice of procedural vehicle (i.e., a motion to set aside the verdict pursuant to C.P.L. Section 330.30(1)) is erroneous in that the determination of guilt in this case resulted from a plea of guilty, not a verdict following trial. Accordingly, in light of the fact that defendant has not yet been sentenced on his plea, this court will treat defendant's motion as a motion to withdraw a plea of guilty pursuant to C.P.L. Sections 220.60(3) and 340.20(1). The court further notes that, because the judge before whom defendant entered his plea of guilty is not presiding outside of New York County, both parties hereto have expressly agreed to have this, the sentencing court, decide the instant motion.

It is well-settled that the decision whether to allow a defendant to withdraw his plea of guilty rests solely within the sound discretion of the trial court. C.P.L. Section 220.60(3); People v. Frederick, 45 N.Y.2d 520, 524-525, 410 N.Y.S.2d 555, 382 N.E.2d 1332; People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784; stay den. 419 U.S. 1086, 95 S.Ct. 677, 42 L.Ed.2d 679; cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822. A review of the record herein reveals that, barring a possible waiver of defendant's facial insufficiency claim as a result of his plea of guilty (discussed infra.), defendant's motions to withdraw his plea and to dismiss the accusatory instrument should be granted.

To be sufficient on its face, the factual portion of a misdemeanor complaint "must contain ... facts of an evidentiary character supporting or tending to support the charges," C.P.L. Section 100.15(3), and must provide "reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument." CPL Section 100.40(4)(b).

This court concludes, as the People in their response to defendant's motion have conceded, that the factual portion of the misdemeanor complaint in this case fails to meet the minimum sufficiency standards of CPL Sections 100.40(4)(b) and 100.15(3) as to both crimes charged.

In People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686, the Court of Appeals held that a misdemeanor complaint charging sale and possession of marihuana was properly dismissed as insufficient under CPL Sections 100.15(3) and 100.40(4)(b) because it failed to allege "evidentiary facts" to support the police officer's conclusion that the substance sold by defendant was actually marihuana. Id., at 731, 506 N.Y.S.2d 319, 497 N.E.2d 686.

As in Dumas, the misdemeanor complaint in the case at bar is defective under C.P.L. Section 100.40(4)(b) and 100.15(3) in that it contains only conclusory language unsupported "by evidentiary facts showing the basis for the conclusion[s]" reached. Id. For example, the hearsay allegation in the misdemeanor complaint that the informant, Police Officer Reyes, observed the defendant "operat(ing) a game of chance commonly known as the disk game," is a mere conclusion. Absent evidentiary facts eliciting precisely what actions of the defendant constituted the alleged "operation" and, in exactly what manner such detailed conduct would create or establish any "unlawful gambling activity" (PL 225.05), the instant misdemeanor complaint does not provide reasonable cause to believe defendant committed the offense of Promoting Gambling (see CPL Section 100.40(4)(b)).

Likewise, the conclusion that defendant "advanced and profited" from this alleged "gambling activity" is not supported by evidentiary facts indicating that he received money or other property representing proceeds of this activity (P.L. Section 225.00(5)), or describing the conduct by which he "materially aided" the undefined "disk game." (P.L. Section 225.00(4)).

As to the charge of Possession of a Gambling Device, the allegation in the complaint that the officer "recovered 3 round blue disks" from defendant, though arguably of an evidentiary character, is insufficient, by itself, to provide reasonable cause to believe defendant committed the crime charged. The added assertion, moreover, that the disks were recovered by the officer only after he had observed defendant "engaging in the above activity" merely incorporates by reference the conclusory language of the Promoting Gambling charge and adds nothing by way of evidentiary facts to support a finding of "reasonable cause."

Having concluded that the misdemeanor complaint herein is in fact facially deficient under the Criminal Procedure Law and Dumas, supra., the question remains whether, as contend by the People, defendant by his plea of guilty thereby waived any challenge as to the facial sufficiency of the instrument to which he pled.

"A guilty plea generally represents a compromise or bargain struck after negotiation between defendant and the People. As such, it marks the end of a criminal case, not a gateway to further litigation.... A guilty plea not only constitutes an actual waiver of certain rights associated with a trial, but also effects a forfeiture of the right to renew many arguments made before the plea." People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755.

The law is settled, however, that a guilty plea does not forfeit the right to challenge a conviction founded on a jurisdictionally defective accusatory instrument. Taylor, supra., at 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 (see also, People v. Case, 42 N.Y.2d 98, 100, 396 N.Y.S.2d 841, 365 N.E.2d 872). Of course, not every omission or defect in an accusatory instrument is sufficient to render the instrument jurisdictionally void. Accordingly, a defendant's failure to assert a timely challenge to a defective accusatory instrument will, in many cases, result in a forfeiture of that claim. People v. Key, 45 N.Y.2d 111, 116, 408 N.Y.S.2d 16, 379 N.E.2d 1147; People v. Grosunor, 109 Misc.2d 663, 668, 440 N.Y.S.2d 996; (see also, C.P.L. Sections 170.30, subd. (1)(a) and (2), and 255.20(1)).

It is defendant's contention that the conceded failure of the misdemeanor complaint in this case to provide factual allegations "of an evidentiary character" sufficient to establish "reasonable cause," as required by CPL Sections 100.15(3) and 100.40(4)(b), is a defect of jurisdictional proportion, the challenge to which has survived his plea of guilty. In support of his position, defendant cites the recent Court of Appeals decision in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71. Defendant's reliance on Alejandro, however, is misplaced.

In Alejandro, supra., the court addressed a facial insufficiency challenge to an information charging the crime of Resisting Arrest (P.L. Section 205.30). The accusatory instrument in Alejandro was held to be defective for failing to comply with the C.P.L. Section 100.40(1)(c) and 100.15(3) "prima facie case" requirement that an information establish, by non-hearsay allegations, "every element of the offense charged and the defendant's commission thereof." Alejandro, supra., at 136, 517 N.Y.S.2d 927, 511 N.E.2d 71.

Notwithstanding the fact that the defendant in Alejandro proceeded to trial, and was convicted, without having raised the facial insufficiency issue, the court upheld Appella Term's dismissal of the information, concluding that the "prima facie case" requirement for informations under CPL Sections 100.40(1)(c) and 100.15(3) is a jurisdictional one, and thus was not waived by defendant's failure to raise the issue until after the completion of her trial. Id., at 135, 517 N.Y.S.2d 927, 511 N.E.2d 71.

The analysis in Alejandro of the statutory scheme established by the legislature for determining the sufficiency of accusatory instruments reveals an unmistakable legislative purpose to distinguish the CPL Section 100.40(1)(c) "prima facie case" requirement for informations from the...