2012-2183 Q CR. THE PEOPLE, res, v. JAGTAR SINGH, app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Toko Serita, J.), rendered August 2, 2012. The judgment convicted defendant, upon his plea of guilty, of public lewdness.
ORDERED that the judgment of conviction is affirmed. Defendant was charged in an information with two counts of public lewdness (Penal Law §245.00 [a]) and other crimes with respect to incidents which allegedly occurred on April 11, 2012 and April 14, 2012. He subsequently pleaded guilty to a single count of public lewdness, in satisfaction of the accusatory instrument. On appeal, defendant contends that the accusatory instrument was facially insufficient. A defendant may, at any time, raise a claim of facial insufficiency of an information resulting from a failure to allege a necessary element. Such a defect is jurisdictional, nonwaivable, and may be raised for the first time on appeal (see People v. Casey, 95 NY2d 354, 364 [2000]). Thus, defendant’s claim is properly before this court. Penal Law §245.00 provides that a person “is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed either from a public place or from other private premises, and with the intent that he be so observed.” Defendant was charged with public lewdness in violation of Penal Law §245.00 (a) and was not charged under Penal Law §245.00 (b). For purposes of this statute, “the term ‘public place’ has no cut-and-dried meaning” (People v. McNamara, 78 NY2d 626, 633 [1991]; cf. Penal Law §221.10; People v. Jackson, 18 NY3d 738 [2012]). An act of public lewdness is committed in a public place “where the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect” (People v. McNamara, 78 NY2d at 633-634 [footnote omitted]).
