People v. Redding

• Decision Date: 17 June 1981
• Parties: The PEOPLE of the State of New York v. Gregory REDDING, Defendant.
• Court: New York City Court

Page 512

440 N.Y.S.2d 512

109 Misc.2d 487

The PEOPLE of the State of New York v. Gregory REDDING, Defendant.

Criminal Court of the City of New York,

New York County, Jury 3.

June 17, 1981.

Robert M. Morgenthau, Dist. Atty., Atty.-of-Record by Joan Keenan, Asst. Dist. Atty., for the people.

Legal Aid Soc., Caesar Cirigliano, Atty.-of-Record, for defendant by Robert J. Jaffe, New York City, of counsel.

JOHN A. K. BRADLEY, Judge.

Defendant Gregory Redding was charged the Petit Larceny, allegedly committed on or about May 9, 1979. A trial on that charge commenced July 15, 1980, on which date the People presented and rested their case without submitting a supporting deposition. After two adjournments, defendant moved on July 24, 1980 to dismiss the case on the ground that no supporting deposition had been filed to convert the misdemeanor complaint into an information. At that time the District Attorney produced a supporting deposition dated July 23, 1980 and attempted to file it.

This court reserved decision on defendant's motion to dismiss until the end of the trial, then rendered a guilty verdict against defendant, and dismissed the complaint as jurisdictionally defective, not having been converted before trial. I then ordered a new trial of the case, which is presently pending in Part JP-1 of this court.

Defendant has now moved to dismiss the pending action on the following grounds: (1) that this court erred in treating defendant's motion to dismiss as a motion to set aside the verdict; (2) that the complaint, once having been dismissed as jurisdictionally defective, cannot constitute a sufficient instrument upon which defendant can be prosecuted; and (3) that for defendant to be reprosecuted for the same offense in this pending action would constitute double jeopardy. Based upon the analysis which follows, this court denies defendant's motion to dismiss.

Criminal Procedure Law § 40.20(1) states that "person may not be twice prosecuted for the same offense." An offense is defined by CPL § 40.10(1) which states as follows: "An 'offense' is committed whenever any conduct is performed which violates a statutory provision defining an offense." CPL § 40.10(1). Section 40.30 of the CPL defines previous prosecution:

Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and * * * a witness is sworn.

In a bench trial, as was the initial Redding trial, jeopardy attaches when the court begins to hear evidence. Lee v. U. S., 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977).

Thus, it would seem that jeopardy had attached in the first Redding prosecution, and that a subsequent prosecution would be barred. Subdivision four of CPL § 40.30, however, creates an exception to the general rule:

Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which dismisses the accusatory instrument but authorizes the people to obtain a new accusatory instrument charging the same offense or an offense based upon the same conduct, the nullified proceedings do not bar further prosecution of such offense under any new accusatory instrument obtained pursuant to such court order or authorization. [emphasis added]

The above provision merely codifies a position long espoused by the federal courts, that is, that where an accusatory instrument is "so radically defective that it would not support a judgment of conviction," the court before which the defendant is prosecuted upon the instrument has obtained no jurisdiction thereby. Shoener v. Pa., 207 U.S. 188, 195, 28 S.Ct. 110, 112, 52 L.Ed. 163 (1907). Thus, a second prosecution upon a corrected instrument is not barred as double jeopardy. Id. at 195-96, 28 S.Ct. at 112-13.

Various cases have examined types of accusatory instruments and a myriad of defects in those instruments to determine which defects are jurisdictional. The Court of Appeals has repeatedly held that a "valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution." People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). See also People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979); motion for rearg. denied 49 N.Y.2d 832, 427 N.Y.S.2d 795, 404 N.E.2d 1336 (1980) and People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336 (1979). One issue presented in this proceeding is whether the absence of a supporting deposition renders the accusatory instrument jurisdictionally defective. ¹ It is the opinion of this court that that question must be answered in the affirmative.

Failure to allege each element of an offense charged in an accusatory instrument has been traditionally deemed a jurisdictional defect. Hall, supra, at 928, 425 N.Y.S.2d 56, 401 N.E.2d 179. (But cf. People v. Cohen, 52 N.Y.2d 584, 439 N.Y.S.2d 321, 421 N.E.2d 813 (1981), holding that by making specific reference to the name and section of the statute allegedly violated, an indictment has in effect alleged every necessary element of the offense.)

It is clear that not every defect in an accusatory instrument is jurisdictional. People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 (1978). Some defects which have been held nonjurisdictional include: failure to verify an information properly, People v. Ehlers, 99 Misc.2d 764, 417 N.Y.S.2d 189 (Dist.Ct.Suff.Co.1979); and failure to place a check mark in the box on the District Attorney's office form for "misdemeanor complaint" or for "misdemeanor information." People v. Gittens, 103 Misc.2d 309, 425 N.Y.S.2d 771 (Crim.Ct.Bronx Co. 1980).

Criminal Procedure Law § 100.10(1) provides that an information

is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony. It may serve as a basis both for the commencement of a criminal action and for the prosecution thereof in a local criminal court.

Section 100.20 defines a supporting deposition as

a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.

Section 100.40(1) states that

an information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15 and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof.

Section 100.50(3) states that a "misdemeanor complaint must or may be replaced and superseded by an information pursuant to the provisions of section 170.65." Subdivision (1) of the latter section provides that a "defendant against whom a misdemeanor complaint is pending is not required to enter a plea thereto." The subdivision goes on to provide that, except in the event a defendant waives his right to be prosecuted by an information instead of by a misdemeanor complaint (see supra at note 1),

purposes of prosecution, such instrument must ... be replaced by an information, and the defendant must be arraigned thereon. If the misdemeanor complaint is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid information, such misdemeanor complaint is deemed to have been converted to and to constitute a replacing information.

Several courts have considered the validity of informations which lack supporting depositions. The Bronx County Criminal Court held that an information without a deposition was not defective where the complainant's sworn testimony at a preliminary hearing was tantamount to a supporting deposition. People v. Rodriquez, 94 Misc.2d 645, 405 N.Y.S.2d 218 (Crim.Ct. Bronx Co. 1978). The Columbia County Court, in People v. Carney, 37 Misc.2d 531, 235 N.Y.S.2d 939 (Co.Ct.Col.Co.1962), held that an information which sufficiently stated the underlying facts of defendant's conduct for which he was charged, though unsupported by deposition, was not jurisdictionally defective.

The majority of courts have held, though, that an information without a supporting deposition confers no jurisdiction upon a court. See, e. g., People v. Bock, 77 Misc.2d 350, 353 N.Y.S.2d 647 (Co.Ct.Broome Co. 1974); People v. Bresee, 37 Misc.2d 516, 238 N.Y.S.2d 539 (Co.Ct. Otsego Co. 1963); People v. Groos, 53 Misc.2d 185, 278 N.Y.S.2d 468 (Dist.Ct.Suff.Co.1967). This court agrees with that assessment. The supporting deposition is not "mere surplusage." People v. Conserva, 42 Misc.2d 782, 783, 249 N.Y.S.2d 204 (Co.Ct.Suff.Co.1964). It is an indispensable part of the accusatory instrument, changing it from a misdemeanor complaint--upon which a defendant may not ordinarily be prosecuted--into an information, upon which a defendant may be prosecuted. Thus, this court holds, as it did in dismissing the initial complaint against Mr. Redding, that an information lacking a...