People v. Conoscenti
| Decision Date | 30 July 1975 |
| Parties | PEOPLE of the State of New York v. Thomas CONOSCENTI, Defendant. |
| Court | New York District Court |
The defendant was charged with a violation of Labor Law § 632(1)(a).
Defendant pled not guilty and the matter proceeded to trial. After the start of the People's case, the defendant moved to dismiss the unlabelled accusatory instrument claiming that it was a misdemeanor complaint and that because he was never advised of his right to be prosecuted by an information, under the authority of People v. Weinberg, 34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434, the misdemeanor complaint must be dismissed.
If this accusatory instrument is a misdemeanor complaint, then defendant's motion must be granted.
CPL § 100.15 details the form and content of a misdemeanor complaint. It must specify the name of the court and the title of the action and must be subscribed and verified by the complainant--any person having knowledge of the commission of the offense charged. Each instrument must contain an accusatory and a factual part. The accusatory part must designate the offense charged. The factual part must contain a statement of the complainant alleging facts of an evidentiary character which support or tend to support the charge. Such allegations may be on personal knowledge or on information and belief.
Under CPL § 100.40(4) a misdemeanor complaint must substantially comply with the provisions of Section 100.15 and the allegations of the factual part and any supporting depositions must provide reasonable cause to believe that the defendant committed the offense charged. If a misdemeanor complaint does not meet these requirements it is insufficient.
The same section, CPL § 100.40(1), distinguishes a misdemeanor complaint from an information by requiring that the latter instrument, in addition to the foregoing, contain nonhearsay allegations, in the factual part and/or any supporting depositions, which would establish, if true, every element of the offense charged and the defendant's commission thereof.
Prior to the enactment of the CPL, the basis for an information was not limited to 'nonhearsay' allegations. The matter had been thoroughly considered by the Court of Appeals. In People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877 the Court held that an information should be based on competent legal evidence, or supported by depositions, or 'that at least the sources of information and grounds of the belief be stated.' (p. 486, 176 N.Y.S.2d p. 326, 151 N.E.2d p. 880)
Then, in two cases decided at the same time People v. Jeffries, 19 N.Y.S.2d 564, 281 N.Y.S.2d 67, 227 N.E.2d 870 and People v. Tennyson, 19 N.Y.2d 573, 281 N.Y.S.2d 76, 227 N.E.2d 876 the Court further discussed the issue. In Jeffries the information was based on statements made to the complaining police officer, the sources of such information were said to be 'conversations between' four named persons. The Court there held that an information based entirely on 'generalized hearsay' is not sufficient. To meet the 'at least' test set forth in James, supra, two conditions must be met: there must be 'identifiable sources of such information' and 'the grounds of such belief' (Jeffries, p. 568, 281 N.Y.S.2d 67, 227 N.E.2d 870). The Tennyson case involved an information sworn to on information and belief based on the complainant-police officer's conversation with the assault victim. This was found to be sufficient because the only possible inference that could be drawn was that the victim accused the defendant. Thus this was not the prohibited 'generalized hearsay' of Jeffries, supra but the permissible 'identifiable hearsay' discussed in James, supra.
CPL § 100.40(1) now requires that an information be supported by non-hearsay allegations which would establish the defendant's commission of the crime charged. In People v. Fields, 74 Misc.2d 109, 344 N.Y.S.2d 413 the Nassau County District Court defined the term hearsay, as it is used in CPL § 100.40, in the light of the historical case background, as meaning hearsay which is not admissible on trial. This court agrees with this construction of the term.
The old line of cases permitting identifiable but not generalized hearsay are no longer effective, in view of the CPL. No hearsay is permitted for use in an information. Only that evidence which is admissible because of the exceptions to the hearsay rule, now codified by CPLR Article 45, may be used. Thus the Fields case, Supra, coins the phrase 'admissable hearsay' to cover that type of hearsay evidence which may be termed 'nonhears...
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