People v. Modica

• Decision Date: 30 March 2001
• Citation: 187 Misc.2d 635,724 N.Y.S.2d 825
• Court: New York Criminal Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>RICHARD MODICA, Defendant.

187 Misc.2d 635

724 N.Y.S.2d 825

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.RICHARD MODICA, Defendant.

March 30, 2001.

Philip O. Ohene, Staten Island, for defendant.

William L. Murphy, District Attorney of Richmond County, Staten Island (Shara LaRosa of counsel), for plaintiff.

OPINION OF THE COURT

WILLIAM E. GARNETT, J.

The defendant is charged with attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]).

The defendant moves to dismiss the accusatory instrument on the ground that it has not been converted to an information. The People have offered the Domestic Incident Report, hereinafter DIR, as a supporting deposition to convert the accusatory instrument to an information.

A DIR may be received as a supporting deposition to an accusatory instrument. (People v Stridiron, 175 Misc 2d 16 [Crim Ct, Queens County 1997]; People v Rahim, NYLJ, Sept. 29, 1998, at 30, col 2 [Crim Ct, Queens County]; People v Hippen, Dec. 14, 1998, Garnett, J.)

CPL 100.15 prescribes the factual requirements of a misdemeanor complaint. In subdivision (3), the statute mandates that the complaint must contain "facts of an evidentiary character supporting or tending to support the charges." These allegations may be based on the personal knowledge of the deponent or upon information and belief. The statute admonishes that "[n]othing contained in this section * * * limits or affects" the requirements that an information must be "supported by non-hearsay allegations" contained in the information itself and/or any supporting depositions. It follows from this statutory language that a misdemeanor complaint can be transformed into a facially sufficient information by factual allegations contained in a supporting deposition. Thus, not all of the essential elemental facts must be contained within the factual portion of the misdemeanor complaint. Thus, any divergence between the facts contained in the body of the misdemeanor complaint and any supporting deposition is of no significant moment as long as the nonhearsay allegations taken from either or both the complaint and the supporting deposition make out the elements of the crime charged. Any other interpretation would eviscerate the significance of the supporting deposition as a factual document with evidentiary value.

Thus, in evaluating the sufficiency of an information, the court must also consider the factual allegations contained in any supporting depositions. (CPL 100.40 [1] [b], [c].) It follows therefore that a supporting deposition may include additional and different facts which support the charges contained in the accusatory instrument. Those facts may be considered with the facts in the accusatory instrument in determining whether the accusatory instrument is sufficient as an information.

CPL 100.20 provides that a supporting deposition contains "factual allegations * * * which supplement those of the accusatory instrument and support or tend to support the charge or charges." Therefore, a supporting deposition which recites facts is not limited to merely restating the facts as contained in the complaint but may contain additional facts to support the charges in the accusatory instrument.

In Stridiron (supra, at 18), the court opined that a DIR may qualify as a supporting deposition if either the document "refer[s] to the facts in the accusatory instrument or * * * recite[s] factual allegations which substantially mirror those set forth in the accusatory instrument." The court included the requirement that: "[I]f a document offered as a supporting deposition does not refer to the accusatory instrument, it must contain the same facts as the factual portion of the accusatory instrument." (Stridiron, supra.) The first alternative suggested by the court appears to address the traditional supporting deposition or a document akin to it. This conclusion is buttressed by the court's admonition that if the putative supporting deposition does not refer to the accusatory instrument, i.e., the complainant does not acknowledge that he or she has read the complaint, the document, to qualify as a supporting deposition, must have the "same facts."

However, these alternatives are not consistent with the language defining a supporting deposition in CPL 100.20. The statute does not require any reference to the filed accusatory instrument. The statute merely describes a supporting deposition as a document which accompanies or is filed in connection with an accusatory instrument. Further, the statute clearly does not require precise factual symmetry between the accusatory instrument and the supporting deposition as the statute provides that facts in the supporting deposition may be received to supplement or support the charges contained in the accusatory instrument. Thus, the statute does not require that a supporting deposition contain the "same facts" as are alleged in the accusatory instrument.

Applying its standard, the court in Stridiron (supra) apparently rejected a DIR as a supporting deposition solely because the date was off by one day. Yet, the date of an occurrence is not an element of the offense or offenses charged. (1 CJI[NY] 8.01, at 376; People v La Marca, 3 NY2d 452 [1957]; People v Jackson, 111 NY 362 [1888].) CPL 100.40 merely requires that the elements of the offense be established.

I would respectfully suggest that the inquiry that the facts in the supporting deposition, i.e., the DIR, must "substantially mirror" the facts in the accusatory instrument be limited to a factual inspection of each document to ascertain whether the accusatory instrument and the DIR are reasonably referable to the same alleged incident. The scope and role of a supporting deposition as defined in the Criminal Procedure Law do not require an exact replication of the facts in the accusatory instrument and any accompanying DIR. Each word or phrase need not be surgically parsed to determine the validity of the DIR as a supporting deposition. If the elements of the crime or crimes charged are established by the facts contained in the DIR and the DIR, upon an inspection by the court, is reasonably referable to the incident alleged in the accusatory instrument, the court may rely on the nonhearsay facts contained in the DIR in determining whether the accusatory instrument is an information. Thus, the facts in the DIR could be determinative of the sufficiency of...