People v. Caraballo

• Decision Date: 30 April 1987
• Citation: 135 Misc.2d 536,515 N.Y.S.2d 965
• Parties: The PEOPLE of the State of New York v. Pedro CARABALLO, Defendant.
• Court: New York City Court

Page 965

515 N.Y.S.2d 965

135 Misc.2d 536

The PEOPLE of the State of New York v. Pedro CARABALLO, Defendant.

Criminal Court of the City of New York Kings County, Part Jury 7.

April 30, 1987.

King's Co. Asst. Dist. Atty. Lynn M. Leopold for the People.

Stephen G. Kennedy of the Legal Aid Society's Brooklyn Office, for defendant.

MAURICE BRILL, Judge.

Defendant, in the present action, is charged with the crimes of Petit Larceny (P.L. 155.25), Criminal Possession of Stolen Property in the third degree (subsequently amended to fifth degree), (P.L. 165.40), Unauthorized Use of a Motor Vehicle (P.L. 165.05), Criminal Mischief in the fourth degree (P.L. 145.00) and Possession of Burglar's Tools (P.L. 140.35).

In substance, it is alleged that the defendant tampered with the lock of an automobile, entered said automobile and removed a radio from the dashboard causing damage to the dashboard. A pair of pliers and a piece of wire were allegedly recovered from him. The accusatory instrument further states that the arresting officer "is informed by defendant's own statements that the defendant did not have permission or authority to enter or remain in the vehicle nor permission or authority to take, use or possess the radio."

A supporting deposition (Permission and Authority Affidavit) from the owner of the automobile in question has not been filed, (C.P.L. 100.20).

Defendant moves for dismissal of the present charges on two grounds. Firstly, he contends that the required readiness period pursuant to C.P.L. 30.30 has elapsed. Secondly, he claims that the accusatory instrument, lacking the owner's Permission and Authority Affidavit, is insufficient on its face and may not be considered a proper information upon which the defendant may be tried.

In response to defendant's first argument citing People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), the case of People v. Worley, 66 N.Y.2d 523, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985) is not to be ignored. In Worley, supra, the Court of Appeals clearly indicated that excludable time is to be considered even when corroboration of the accusatory instrument is still pending. The chronology of the present matter reveals that virtually all of the adjournment time preceding the Court's present decision is excludable by virtue of defendant's consent, his request to make motions and his absence from court. Thus, a dismissal pursuant to C.P.L. 30.30 at this time would be premature, even if the People's announced readiness on September 29, 1986 was found ineffective for lack of a proper supporting affidavit. Thus, the motion to dismiss on C.P.L. 30.30 grounds is denied.

The second branch of defendant's motion requires further detailed analysis as to the first four charges. The general requirements for a misdemeanor complaint and an information are to be found in C.P.L. Sections 100.15 and 100.40. The factual portions of both instruments must contain a statement alleging facts of an evidentiary character tending to support the charges. The factual portions, together with supporting depositions, must provide reasonable cause to believe that the defenda committed the offense charged. ¹ An information, however, further requires that the "non-hearsay allegations of the factual part of the information and/or of any supporting depositions (must) establish, if true, every element of the offense charged and the defendant's commission thereof." (C.P.L. 100.40(1)(c)). Since the allegations of the information represent the only formal accusation and expression of the charge which the defendant will have to meet, the information is required to exhibit a prima facie case as well as reasonable cause.

People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979) takes note of the information's requirements in the following language:

"It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime .... In order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be alleged, (C.P.L. 100.40 subd. 1, p (c); 100.15 subd. 3)."

Cf. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977); People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974); People v. McGuire, 5 N.Y.2d 523, 526, 186 N.Y.S.2d 250, 158 N.E.2d 830 (1959); People v. Crisofulli, 91 Misc.2d 424, 398 N.Y.S.2d 120 (N.Y.C. Criminal Court, N.Y. County 1977). See also, Bellacosa, Practice Commentary, C.P.L. Section 100.15, 100.40 and Pitler, New York Criminal Practice Under the C.P.L. at 283 citing Staff Comment to Proposed C.P.L. Section 50.35(b)-(c) at 86-87.

As noted above, to comply with the requirements of the applicable statute (C.P.L. 100.40 subd. (1)(c)), an information, to be sufficient, must set out each of the elements of the offense charged in the form of nonhearsay allegations.

The Court of Appeals clearly recognizes this requirement in People v. Weinberg, supra, 34 N.Y.2d at 431, 358 N.Y.S.2d 357, 315 N.E.2d 434, wherein it compares the complaint with the information as follows:

"The misdemeanor complaint is an accusatory instrument filed with a local criminal court charging a person with a crime, (C.P.L. 100.10). It serves merely as a basis for commencement of a criminal action, permitting court arraignment and temporary control over the defendant's person where there is yet no prima facie case. However, it is not designed for prosecution purposes and a defendant is not required to plead to a misdemeanor complaint and cannot be tried thereon unless he consents, (C.P.L. 100.10, subd. 1; 170.65, subd. 1). The right is substantial and takes into account a fundamental difference between these accusatory instruments--i.e., that a misdemeanor complaint may rest on hearsay allegations while an information may not. (C.P.L. 100.40, subds. 1, 4)."

The above analysis clearly points to the conclusion that cases such as the one at bar should, absent special circumstances, follow the rationale and decision reached in People v. Hurtado, 116 Misc.2d 897, 456 N.Y.S.2d 660 (N.Y.C. Criminal Court, New York County 1982).

Informations charging the crimes of Petit Larceny, Criminal Possession of Stolen Property, Unauthorized Use of a Motor Vehicle and Criminal Mischief require nonhearsay allegations establishing the material element of lack of permission and authority. A defendant may not be brought to trial on such charges, absent his consent, without the presence of said nonhearsay allegations in the four corners of the accusatory instrument or in a proper supporting deposition.

Cases such as People v. Salomon, 131 Misc.2d 1075, 502 N.Y.S.2d 392 (N.Y.C. Criminal...