People v. Williams

• Decision Date: 27 August 2012
• Docket Number: No. 12030151.,12030151.
• Citation: 36 Misc.3d 1234,959 N.Y.S.2d 91,2012 N.Y. Slip Op. 51596
• Parties: PEOPLE of the State of New York v. Annette D. WILLIAMS, Defendant.
• Court: New York Justice Court

36 Misc.3d 1234

959 N.Y.S.2d 91

2012 N.Y. Slip Op. 51596

PEOPLE of the State of New York

v.Annette D. WILLIAMS, Defendant.

No. 12030151.

Justice Court, Town of Webster, New York, Monroe County.

Aug. 27, 2012.

Candace M. Lee, Esq., Assistant District Attorney.

Kathryn Burkhardt, Esq., for defendant.

THOMAS J. DiSALVO, J.

Statement of Facts.

The defendant was charged with one count of petit larceny allegedly occurring on March 9, 2012 at approximately 11:15 A.M. at the K–Mart located at 950 Ridge Road in the Town of Webster. The information consisted of a misdemeanor complaint signed by Webster Police Officer Pete Scorsone and a supporting deposition, sworn to by a Derek Christensen, an employee of K–Mart, as “loss prevention team lead”. The complaint alleged that the defendant, Annette D. Williams, took property having the approximate value of $133.19, but does not allege that the officer witnessed the event in question. The supporting deposition states that the actions of “the female” were observed by the said K–Mart security person. The supporting deposition then alleges that said female was stopped by Derek Christensen, who confronted her in the vestibule of the store. It is then alleged that the she fled the store on foot and got into a white Nissan Pathfinder and then drove out of the parking lot onto to Ridge Road. Mr. Christensen indicated that he then contacted 911 regarding said incident. At 1:39 P.M. he received a phone call from Officer Scorsone asking him to come to the Webster Police Department. The supporting deposition states that upon arriving at the Webster Police Department Mr. Christensen picked what he described as “the female” out of a photo array. The supporting deposition goes on to say “The female in photograph number 5 is the suspect from earlier in the day at K–Mart.” At no point in the supporting deposition is the defendant identified by name.

Defense counsel moves in her Omnibus Motions to dismiss the accusatory instrument as being insufficient on its face pursuant to CPL 170.30(1)(a), 170.35(1)(a), 100.40(1)(b), 100.40(4)(b) and 100.40(1)(c). In addition to filing a response in opposition to said motion the People request that the court permit the filing of an amended information, which would include an amended supporting deposition wherein the deponent states that “The female was identified to me as Annette D. Williams.” ¹

Issues Presented.

Is an information insufficient on its face if the supporting deposition fails to indicate the name of the defendant?

Are the People entitled to file an amended information consisting of an amended supporting deposition which sets out the name of the defendant?

Legal Analysis.

Sufficiency of Information. The defense contends that the accusatory, instrument which is an information consisting of a complaint and supporting deposition, is defective because there are no non-hearsay allegations in the complaint or supporting deposition as required by C.P.L. 100.40(1)(c), that set forth the name of the defendant. That argument triggers a run through the labyrinth of sections dealing with misdemeanor complaints, informations and their sufficiency. It is well established that “... a misdemeanor complaint can be transformed into a facially sufficient information by factual allegations contained in a supporting deposition. ( People v. Modica, 187 Mis.2d 635,636, 724 N.Y.S.2d 825,826 [2001] ). C.P.L. Section 100.40(1)(b) requires that “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.” Thus the complaint and supporting deposition may be considered together as one document. Ellis at *8 Supra. In so doing one must note the key phrase in that sub-section, which is that of “reasonable cause”. That phrase is defined in C.P.L. 70.10(2) which states as follows:

“Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.”

C.P.L. 100.40(1)(c) requires that “Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.” Thus, neither the misdemeanor complaint nor the supporting deposition should be examined independently in determining the sufficiency of an accusatory instrument. In this case the factual part of the misdemeanor complaint refers simply to “the defendant”. The defendant's name is, of course, set out in the caption of that document, which means that the identity of the defendant is sufficiently set out in the factual part of the information by reference.

In addition, it has been held that

“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 allegationsmay 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.... 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.” (Modica, 187...