People v. Hardy

• Decision Date: 15 October 2020
• Docket Number: No. 48,48
• Citation: 132 N.Y.S.3d 394,157 N.E.3d 117,35 N.Y.3d 466
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward HARDY, Appellant.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 466

157 N.E.3d 117

132 N.Y.S.3d 394

The PEOPLE of the State of New York, Respondent,

v.Edward HARDY, Appellant.

No. 48

Court of Appeals of New York.

October 15, 2020

OPINION OF THE COURT

WILSON, J.

The issue before us is whether the lower courts erred in permitting amendment of a clearly erroneous fact contained in the information charging Mr. Hardy with harassment and contempt in the second degree. In People v. Easton, 307 N.Y. 336, 121 N.E.2d 357 (1954), we upheld a similar amendment. However, Easton was decided when the Code of Criminal Procedure governed criminal prosecutions. Following several years of study and numerous reports by the Bartlett Commission,¹ the legislature replaced the Code of Criminal Procedure with the modern Criminal Procedural Law (CPL). Relying on Easton, the Appellate Term held that the factual amendment of the clearly erroneous date was permissible. We must now decide whether Easton remains good law following the passage of the Criminal Procedure Law. We conclude the CPL displaced Easton and precluded prosecutors from curing factual errors or deficiencies in informations and misdemeanor complaints via amendment. The CPL requires a superseding accusatory instrument supported by a sworn statement containing the correct factual allegations. Therefore, we reverse.

I.

On September 10, 2013, Criminal Court issued a two-year order of protection directing Mr. Hardy to refrain from harassing his wife and to stay away from her home. Mr. Hardy violated the order in January 2015 when he "came ringing the bell ... yelling and screaming ... and saying all kinds of foul language." His wife averred Mr. Hardy was "out of control" and refused to leave, in violation of the order of protection. He was arraigned the following day on a misdemeanor complaint, charging him with harassment and criminal contempt in the second degree.

After a four-day adjournment—granted so the People could obtain a supporting deposition—the parties reconvened and the court proceeded to convert part of the complaint into an information, notwithstanding the presence of several errors in the accusatory instrument. Although the first page of the attached Domestic Incident Report listed the date (correctly) as "1/25/15," the second page mistakenly dated the statement as having been given a year prior—"1/25/14" instead of "1/25/15." In addition, the handwritten narrative on the first page of the report was only partially legible and partially intelligible. Germane to this appeal, the accusatory instrument incorrectly alleged that the crime occurred "on or about October 25, 2015." That date, which would not occur for another nine months, was patently incorrect. That date also fell after the expiration of the order of protection, meaning that the accusatory instrument facially failed to state facts showing a violation of the order of protection.

When defense counsel objected that the accusatory instrument included the wrong date, the court responded: "that's clearly a typographical error which the People can move to amend at any time." Over objection, the court then granted the People's oral motion to amend the date of the incident. Mr. Hardy subsequently pled guilty to criminal contempt, as charged in the amended accusatory instrument. He received a ninety-day jail sentence.

On appeal, Mr. Hardy challenged the facial sufficiency of the original accusatory instrument and argued the court impermissibly granted the People's motion to amend the instrument ( 63 Misc.3d 6, 8, 92 N.Y.S.3d 536 [App. Term. 2019] ). The Appellate Term, after noting that "case law has been inconsistent in this area" ( id. at 9, 92 N.Y.S.3d 536 ), ultimately upheld the amendment. The court first determined that:

"notwithstanding the fact that CPL 100.45 does not authorize factual amendments of informations and complaints, the common-law rule of Easton still governs, and, thus, courts retain the inherent authority to permit factual amendments to these types of instruments pursuant to the guidelines set forth in Easton " ( id. at 11–12, 92 N.Y.S.3d 536 ).

Applying Easton 's rule, the Appellate Term concluded the amendment did not "surprise or prejudice" Mr. Hardy because it rectified a clear "typographical error of which defendant should have been aware" ( id. at 13, 92 N.Y.S.3d 536, quoting Easton, 307 N.Y. at 338, 121 N.E.2d 357 ). A Judge of this Court granted leave to appeal.

II.

The People agree that the original misdemeanor complaint was facially insufficient, and that Mr. Hardy could not have been prosecuted on it.² Therefore, the question is whether the court had the authority to amend the date to create a valid instrument. Our decision in Easton, if it was not displaced by the CPL, may well have answered that question. The facts in Easton are quite like the facts here. Mr. Easton was arrested on December 17, 1952 for driving while intoxicated. The arresting officer mistakenly recorded the year as 1953, unintentionally charging Mr. Easton with a violation occurring a year into the future ( Easton, 307 N.Y. at 338, 121 N.E.2d 357 ). The error was not discovered until the eve of trial, at which point the trial court permitted the People to amend the instrument to correct the clearly incorrect date. On appeal, we upheld the amendment, explaining that because

"the correction of the date occasioned [Mr. Easton] no surprise or prejudice ... what could have been effected by the preparation of a new information was properly accomplished by amendment of the one already on file. There was neither reason nor necessity for another piece of paper" ( id. )

Easton established a clear rule: factual amendments to informations were permitted provided the amendment did not surprise or prejudice the defendant. While the content of Easton 's rule is clear, the source of its holding is not. Easton is silent as to whether its rule derives from the Code of Criminal Procedure or the common law; it mentions neither explicitly.³ In this case, the source of Easton 's holding does not change our analysis,⁴ and the question we must ask is whether the legislature, by enacting the CPL, displaced or left undisturbed Easton 's rule that factual amendments to informations are permitted as long as there is no prejudice to the defendant.

III.

The text, structure, and legislative history of the Criminal Procedure Law all show that the legislature replaced Easton 's rule with a more finely-tuned set of rules governing amendments, tailored to each of the types of accusatory instruments it had defined in the CPL. CPL 200.70 does permit the kind of factual amendment the People sought to make here, but only for a select subset of accusatory instruments, and not for informations or complaints. As relevant to Mr. Hardy's case, the CPL provides, at most, that only the nonfactual, accusatory portion of an information can be amended.

One of the CPL's major innovations was the creation of a new taxonomy of accusatory instruments. Where the Code had differentiated between "indictments" and "informations," the CPL divided informations into five types of local criminal court accusatory instruments: informations, simplified informations, prosecutor's informations, misdemeanor complaints and felony complaints ( CPL 100.05 ). In the CPL, the legislature also adopted rules for amending accusatory instruments; those rules varied by the type of instrument. As to indictments, the CPL retained the preexisting Code rule that indictments could not be amended if they might prejudice the defendant. However, the new CPL 200.70 added a limitation not present in the Code: indictments could not be amended, regardless of prejudice, if the amendment "change[d] the theory or theories of the prosecution as reflected in the evidence before the grand jury." The legislature chose to subject prosecutor's informations to the same standards governing indictments ( CPL 100.45[2] ). Superior court informations were treated in a similar fashion, although with an explicit difference. Section 200.70 permitted superior court informations to be amended as to "matters of form, time, place, names of persons and the like," but the legislature omitted the limitation that the amendments could not change the theory of the prosecution. Instead, the permissibility of such amendments turned on whether the defendant would be prejudiced. For complaints and informations, the legislature did not permit factual amendments for time, place, or names, as it had for prosecutor's and superior court informations. Instead, CPL 100.45(3) permits the prosecutor to amend only the accusatory part of an information to add additional charges, provided those charges are supported by the original factual allegations.

The legislature's decision to exclude informations and misdemeanor complaints from the scope of section 200.70 is supported by a strong rationale. An information or a complaint—unlike an indictment or superior court information—commences a criminal action based on the allegations of someone who is not an officer of the court, and whose testimony has not been vetted by a grand jury.⁵ Under those circumstances, it was reasonable for the legislature to decide that no one but an affiant should be permitted to alter the factual allegations previously sworn to an affiant.⁶ Moreover, where the legislature did permit the prosecutor to move to amend informations, it expressly limited such amendments to the accusatory portion only, and further required that the amendment to the accusatory portion must be "supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it" ( CPL 100.45[3] ). Allowing amendments to the factual part of an information would render the restriction in CPL 100.45 meaningless.

Easton interpreted the permissibility of amendments to accusatory instruments under a substantially different statutory landscape, now defunct. Despite the dissimilarities between the Code and the...