People v. Dumay

• Decision Date: 05 June 2014
• Docket Number: No. 116,116
• Citation: 23 N.Y.3d 518,16 N.E.3d 1150,992 N.Y.S.2d 672,2014 N.Y. Slip Op. 04038
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph DUMAY, Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 518

16 N.E.3d 1150

992 N.Y.S.2d 672

2014 N.Y. Slip Op. 04038

The PEOPLE of the State of New York, Respondent

v.Joseph DUMAY, Appellant.

No. 116

Court of Appeals of New York.

June 5, 2014.

Steven Banks, The Legal Aid Society, New York City (Amy Donner of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Adam M. Koelsch and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

On appeal, defendant Joseph Dumay challenges the facial sufficiency of the People's accusatory instrument, which charged him with, inter alia, obstructing governmental administration

in the second degree by preventing a police officer from patrolling the neighborhood. We hold that defendant waived prosecution by information, and the accusatory instrument met the factual sufficiency requirements of a misdemeanor complaint.

Defendant was arrested on a public street in Brooklyn, New York, for obstructing a police officer's exercise of his official duties. According to the accusatory instrument, defendant “slammed the trunk of [the police officer's] radio mounted patrol vehicle with an open hand and prevented said vehicle from moving by standing behind it and preventing [the police officer] from patrolling the neighborhood.”

Defendant agreed to plead guilty to obstructing governmental administration in exchange for a 15 day sentence.^* The court asked defense counsel if defendant waived prosecution by information, and defense counsel replied, “So waive.” During the subsequent plea allocution, defendant admitted the facts as alleged in the accusatory instrument, and the court sentenced defendant to 15 days in accordance with the plea agreement.

Thereafter, defendant unsuccessfully appealed his conviction to the Appellate Term. Defendant maintained that, notwithstanding his counsel's statement, he did not waive prosecution by information, and as a consequence the accusatory instrument was subject to the legal standards applicable to a misdemeanor information, rather than a complaint. Under those standards, defendant maintained that the accusatory instrument was jurisdictionally defective because the charge of obstructing governmental administration was only supported by conclusory statements.

The Appellate Term affirmed defendant's conviction. Initially, the Court found that defendant's challenge was jurisdictional and therefore did not require preservation. On the merits, the Court found that defendant expressly waived his right to prosecution by information, requiring the instrument to be evaluated as a misdemeanor complaint. Under that standard, the Court concluded, the allegations were sufficient to support a charge of obstructing governmental administration (People v. Dumay, 36 Misc.3d 159[A], 2012 N.Y. Slip Op. 51809[U] [App.Term 2d Dept., 2d, 11th & 13th Jud.Dists.2012] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278 [2013] ) and we now affirm.

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010], citing People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977], and People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10[4] ; 120.20[1][a]; 170.65[1], [3]; 170.70; People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10[4] ; Kalin, 12 N.Y.3d at 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” (Kalin, 12 N.Y.3d at 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381, citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999], and CPL 100.40[1][c] ). We have called this “the prima facie case requirement” (Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 [internal quotation marks omitted] ). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant (see People v. Alejandro, 70 N.Y.2d 133, 138–139, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense (see Kalin, 12 N.Y.3d at 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act (see People v. Casey, 95 N.Y.2d 354, 359, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 [1974] ). When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65[1], [3] ; Kalin, 12 N.Y.3d at 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

Here, defendant argues that he never effectuated a lawful waiver of his right to prosecution by information, and, therefore, the accusatory instrument is an information that is subject to the prima facie case requirement. This argument is completely without factual record support. Defense counsel replied “So

waive” in open court, in defendant's presence, and in response to Criminal Court's direct inquiry as to whether defendant waived prosecution by information. This statement communicated, in no uncertain terms, defendant's choice to waive his right.

To avoid the obvious consequences of the facts as found in the record, defendant argues that his waiver was a legal nullity because the People charged and arraigned him by information. This argument is based on the flawed premise that a defendant cannot waive prosecution by information when the People have initiated the case by information, rather than by complaint. Nothing in the CPL or our case law supports this idea. Indeed, CPL 170.65 specifically allows a defendant to waive prosecution by information, which necessarily entails forgoing the statutory protections required of an information and submitting to prosecution by complaint. A defendant's knowing and voluntary waiver is valid regardless of whether the criminal action commences by information or complaint.

Defendant seeks to draw support for his argument from our opinion in People v. Fernandez, 20 N.Y.3d 44, 956 N.Y.S.2d 443, 980 N.E.2d 491 (2012). In that case, the defendant was charged with aggravated unlicensed operation of a motor vehicle by an accusatory instrument titled “complaint/information” (id. at 47, 956 N.Y.S.2d 443, 980 N.E.2d 491 ). The defendant argued that the instrument was a facially insufficient misdemeanor complaint (id. at 48, 956 N.Y.S.2d 443, 980 N.E.2d 491 ). We held that an accusatory instrument should be evaluated based on its substance and not its label, and concluded that the accusatory instrument was sufficient to serve as a simplified traffic information because it was substantially in the form prescribed by the Commissioner of Motor Vehicles, thus meeting all applicable legal requirements (id. at 51–53, 956 N.Y.S.2d 443, 980 N.E.2d 491 ).

Defendant's reliance on Fernandez is misplaced. Here, we are not asked to give the proper name to an ambiguously titled accusatory instrument. Instead, we must decide which legal standard to use for evaluating the instrument's sufficiency. Despite defendant's assertions to the contrary, the record leads to the inevitable conclusion that he validly waived his right to prosecution by information. Thus, the proper legal standard is that required of a complaint. Absent any claim or proof that the defendant's waiver was not intelligent, knowing, and voluntary, he cannot now seek the statutory protections that he waived.

Moreover, adopting defendant's interpretation of the statute would allow defendants to manipulate the plea bargaining

system. By pleading guilty and waiving prosecution by information, a defendant signals an end to any challenge to an information's factual sufficiency. If a defendant can later appeal a knowing and voluntary plea by resuming the same sufficiency argument the defendant had forsaken in the trial court, it would undermine the finality of the conviction. The unintended result could be prosecutors who are no longer willing to broker plea bargains in misdemeanor cases for fear of endless litigation over the accusatory instrument.

Having rejected defendant's waiver argument we must measure the facial sufficiency of the accusatory instrument by the standard required of misdemeanor complaints. A misdemeanor complaint is adequate if it provides the defendant “with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (Dreyden, 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526, citing Kalin, 12 N.Y.3d at 231–232, 878 N.Y.S.2d 653, 906 N.E.2d 381, and Casey, 95 N.Y.2d at 366, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). As we have said, the instrument's factual allegations must establish “ ‘reasonable cause’ to believe that the defendant committed the charged offense” (Kalin, 12 N.Y.3d at 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 ).

Defendant challenges the sufficiency of the instrument in two respects. First, he argues that...