People v. Casey

• Citation: 740 N.E.2d 233,95 N.Y.2d 354,717 N.Y.S.2d 88
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN CASEY, Appellant.
• Decision Date: 21 November 2000
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 354

740 N.E.2d 233

717 N.Y.S.2d 88

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN CASEY, Appellant.

Court of Appeals of the State of New York.

Argued September 7, 2000.

Decided November 21, 2000.

Legal Aid Society of Nassau County, Hempstead (Tammy Feman, Matthew Muraskin and Kent V. Moston of counsel), for appellant.

Denis Dillon, District Attorney of Nassau County, Mineola (Lawrence J. Schwarz, Peter A. Weinstein and Robert A. Schwartz of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

LEVINE, J.

Defendant appeals, leave having been granted by a Judge of this Court, from the portion of an order of the Appellate Term affirming his conviction of the misdemeanor crime of criminal contempt in the second degree. Defendant was convicted of violating a Temporary Order of Protection issued by the Nassau County District Court on August 15, 1996. The order was made in connection with a harassment charge filed against defendant; that charge was still pending when the contempt allegedly occurred during the evening of December 2, 1996.

A Nassau County Police Department detective was assigned to investigate the complainant's report of the violation of the Temporary Order of Protection. The evidence at both the suppression hearing and the trial was that the detective initially verified the existence of the order from police department records. He then interviewed the complainant, at which time she showed him a certified copy of the order. The detective took a signed deposition from the complainant and left word at defendant's residence to call him at police headquarters. When defendant called, the detective had him verify that he was the person served in court with the order. They agreed that defendant would surrender on December 9 rather than be arrested that evening. When defendant appeared at headquarters, he was advised of his Miranda rights and questioned concerning his conduct during the evening of December 2. He gave oral and written statements impliedly admitting the acts alleged to have violated the order.

Defendant's motion to suppress his statements to the police was denied. Thereafter, a jury convicted him of, among other things, criminal contempt. The Appellate Term affirmed the criminal contempt conviction, rejecting defendant's arguments that the District Court information was jurisdictionally defective and that his statements to the police were inadmissible (181 Misc 2d 744).

I

Defendant's primary point, raised for the first time before the Appellate Term, is that the District Court information charging him with criminal contempt was jurisdictionally defective in three respects: (1) the Temporary Order of Protection was not attached to the information, and the accusatory instrument did not otherwise allege that the order was in effect on the date the contempt was committed; (2) the Temporary Order of Protection itself was, by its terms, not in effect on that date; and (3) the information did not contain non-hearsay allegations of defendant's knowledge of the order. The Appellate Term held that the failure to annex the Temporary Order of Protection to the information "render[ed] it defective as an information because of its hearsay nature" (181 Misc 2d, at 745 [emphasis supplied]). Nevertheless, the court held that since the instrument would have "qualifie[d] as a misdemeanor complaint," defendant, by waiving the reading of his procedural rights and proceeding to trial, also waived the right to be prosecuted by information (id., at 745 [citing People v Connor, 63 NY2d 11]; see, CPL 170.10 [4] [d]).

While we hold that defendant's challenge to the information does not warrant reversal, we cannot agree with the Appellate Term's rationale for that result. The record suggests that defendant waived only a reading of the information (previously furnished to his attorney), not a reading of his procedural right to be prosecuted by information. Thus, there is an insufficient evidentiary basis for any finding of a knowing and intelligent (albeit implied) waiver of the right to be prosecuted upon an information (see, People v Weinberg, 34 NY2d 429, 431

; cf., People v Connor, supra).

Moreover, as the Appellate Term acknowledged, the accusatory instrument here was denominated, and purported to be, a misdemeanor information with a supporting deposition, not a misdemeanor complaint. That the instrument would have qualified as a misdemeanor complaint did not make it one. Since the accusatory instrument here was in fact a local criminal court information, and not a misdemeanor complaint, the District Court would not have had the statutory obligation to inform defendant that he "may not be prosecuted [on a misdemeanor complaint] * * * unless he consents" (CPL 170.10 [4] [d]). Therefore, in contrast to People v Connor, no waiver of the right to be tried upon a statutorily valid information can be implied from defendant's silence and proceeding to trial.

Nonetheless, defendant's contentions regarding the defectiveness of the information do not require reversal. Although annexing the Temporary Order of Protection to the information would have been the far better practice, and would have largely obviated defendant's procedural challenge here, the failure to annex it does not require reversal under the particular circumstances of this case. The procedural requirements for the factual portion of a local criminal court information are, simply: that it state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the "allegations of the factual part * * * together with those of any supporting depositions * * * provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]); and that the "[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see, CPL 100.15 [3]).

So long as the factual allegations of an information give an accused notice sufficient 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 (see, People v Jacoby, 304 NY 33, 38-40

; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Shea, 68 Misc 2d 271, 272; see also, People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733). As to defendant's objection that, without attachment of the Temporary Order of Protection, the accusatory instrument here failed to include any non-hearsay allegation that the Temporary Order of Protection was outstanding and in effect on the December 2 date of the alleged offense, the complainant's supporting deposition states clearly and succinctly that a Temporary Order of Protection had been issued, prohibiting defendant from engaging in harassing or criminal conduct against her. She also averred that she personally observed specifically described conduct of the defendant on December 2 that violated the order. At the very least, the fair implication of these averments established her firsthand knowledge that the order had been granted, was in effect and was violated by defendant's harassing or criminal conduct on the date of the offense. Any challenge to those allegations, including whether the order was in effect on the date of the contumacious conduct, was a matter to be raised as an evidentiary defense to the contempt charge, not by insistence that this information was jurisdictionally defective without annexation of the order to that accusatory instrument. Defendant's failure to raise an issue before the District Court as to whether the order was in effect when the offense allegedly occurred thus precludes its consideration here.

II

Defendant's final objection to the sufficiency of the information is that it is jurisdictionally defective under CPL 100.40 (1) (c) in failing to set forth any non-hearsay allegation of defendant's knowledge of the Temporary Order of Protection. Whether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument (see, Matter of Edward B., 80 NY2d 458, 462-464

[construing Family Ct Act § 311.2 (3), the virtually identical juvenile delinquency counterpart to CPL 100.40 (1) (c)] [citing Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.40, at 255]).

Moreover, a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception (see, Marks et al., New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac Series 1996]; see also, People v Belcher, 302 NY 529, 534-535

).

Here, the detective averred in the factual portion of the information that he was "advised by the complainant" that defendant had violated the Temporary Order of Protection, and specifically described the conduct constituting the offense, referring to the complainant's supporting deposition. The information then alleges "[t]he defendant was advised and served a copy of the Order of Protection in court on 8-15-96." It is not clear from a facial examination of the information whether that allegation relating to defendant's knowledge of the order was based only upon the complainant's advice (she did not aver this in the supporting deposition, however), or whether it was based upon the detective's direct knowledge or some exception to the hearsay rule, either of which would have satisfied CPL 100.40 (1) (c). Thus, because it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40 (1) (c), the information is subject to a motion to dismiss (see, Matter of Rodney J., 83 NY2d 503, 507

). Had the motion...