Recitation of the papers considered: Defendant’s n/m, aff. Katherine Burton, Esq., dated June 7, 2023 People’s aff. in opposition, aff. Shannon Spada, Esq., dated June 27, 2023 Defendant’s reply dated August 7, 2023 DECISION AND ORDER Defendant Damian Baez is charged by information with Assault in the Third Degree (PL §120.00[1]), a class A misdemeanor, and Harassment in the Second Degree (PL §240.26[1]), a violation. Defendant moves to dismiss the accusatory instrument as facially insufficient. The People oppose. DISCUSSION Although a misdemeanor complaint can serve to commence a criminal action, it must be converted to an information to proceed to trial, unless waived (CPL 170.65; People v. Dumay, 23 NY3d 518, 522 [2014]). Regardless of which is utilized for prosecution, a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see Dumay; People v. Case, 42 NY2d 98, 99 [1977]). Thus, unless waived, the People cannot be ready for trial absent a jurisdictionally sufficient information (see People v. Slade, 37 NY3d 127, 133 [2021]; People v. Johnson-McLean, 71 Misc3d 31, 35 [App Term, 1st Dept 2021], lv denied 37 NY3d 966 [2021]). An information must contain an accusatory part and a factual part (CPL 100.15[1]; Case, 42 NY2d at 99-100). The accusatory section “must designate the offense or offenses charged” (CPL 100.15[2]). The factual section must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15[3]) and “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part” (CPL 100.40[1][b]). The non-hearsay factual allegations must “establish, if true, every element of the offense charged and defendant’s commission thereof” (CPL 100.40[1][c]; Slade, supra; Casey, 95 NY2d 354, 360 [2000]), the “prima facie case requirement” (People v. Kalin, 12 NY3d 225, 229 [2009]). “A ‘prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial,’ nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (id. at 230, quoting (People v. Henderson, 92 NY2d 677, 680 [1999]). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (Casey, 95 NY2d at 360; see People v. Dreyden, 15 NY3d 100, 103 [2010]). The accusatory instrument here states that Defendant Baez committed the charged offenses on or about January 25, 2023, but there is no dispute that the conduct took place on December 31, 2022. Indeed, Defendant notes that his “rap sheet confirms that the date of the crime was December 31, 2022,…all of the police reports, all of the discovery turned over by the prosecution on April 12, 2023, CLEARLY verifies that the alleged crime was December 31, 2022,” and on April 17, 2023, “the defense informed all that the correct date of the alleged offense was December 31, 2022″ (Motion at 4-5). Defendant argues that the incorrect date renders the information facially insufficient, and the only way to correct the error is to file and serve a superseding information, and therefore the People’s certificate of compliance and statement of trial readiness are invalid; the filing of a superseding information on June 23, 2023 was ineffective, according to Defendant, because it post-dated the CPL 30.30 speedy trial deadline. Defendant relies on People v. Hardy (35 NY3d 466 [2020]) for the proposition that the incorrect date in the information is incurable absent a timely superseding information. In Hardy, however, the People conceded that the accusatory instrument was facially insufficient and that the defendant could not have been prosecuted on it (id. at 470). Specifically, the defendant was charged in a January 2015 complaint with engaging in conduct on or about October 25, 2015 that violated a two-year order of protection issued on September 10, 2013. The date of the crime as alleged thus took place nine months in the future, which was “patently incorrect,” and “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” (id. at 469). Accordingly, the instrument failed to state a crime, which was a “fundamental defect” that could only be cured through amendment (id. at 475). The Court determined that, under the CPL, the only way to amend the factual part of misdemeanor complaints and informations is through a superseding accusatory instrument, unlike for indictments or superior court informations (id. at 471-475). Here, unlike in Hardy, the People do not concede that the accusatory instrument is jurisdictionally defective, and the information does in fact state a crime; therefore, no amendment to the information is necessary to salvage it (People v. Perry, 78 Misc3d 132[A] [App Term, 1st Dept 2023] [minor discrepancy between the complaint and supporting deposition regarding the precise location of the moving train when the defendant committed lewd conduct "was merely technical, not jurisdictional," and did not implicate Hardy]; Johnson-McLean, 71 Misc3d at 39 [complainant's correction of the spelling of her first name in the supporting deposition, which thus conflicted with the spelling in the complaint, was not a facial insufficiency within the concerns of Hardy]; People v. Minott, 70 Misc3d 1217[A] [Crim Ct, NY County 2021] [information's reference to "Chatham Street," which does not exist anywhere in Manhattan, rather than "Chatham Square," which does exist at the intersection otherwise identified, did not negate an element of the crime or deprive the defendant of sufficient notice to prepare a defense, as there was no doubt where the incident took place]; cf. People v. Matera, 74 Misc3d 135[A] [App Term, 2d Dept 2022] [the People conceded that a superseding information was necessary to amend the allegation that the controlled substance the defendant possessed and was impaired by while driving was fentanyl, not oxycodone, and that the instrument should therefore be dismissed]). The next question then becomes whether the information gave Defendant sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy (see Dreyden, 15 NY3d at 103; Casey, 95 NY2d at 360). The Defense argues that the information failed that test, asserting that People v. Ramcharran (61 Misc3d 234 [Crim Ct, Queens County 2018]) is on point. There, the court found the accusatory instrument facially insufficient because the People waited almost two years, and on the eve of trial, to put forth two new addresses, spanning ten blocks, that were not near or in the vicinity of the one listed in the original and superseding informations and the bill of particulars. In fact, the People had “ostensibly yet to settle on a specific address of the alleged offense,” public lewdness and related charges, and the “significant theory change…substantially prejudice[d] defendant by severely compromising his ability to conduct a thorough investigation and reasonable prepare a defense for trial” (id. at 238-239). Those concerns are not present here. If a precise date is not a substantive element of the crime charged, then the accusatory instrument need not give an exact date and time, but only an approximation (People v. Morris, 61 NY2d 290, 295 [1984]; see People v. Sedlock, 8 NY3d 535, 538 [2007]). “The determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant…must be on an ad hoc basis by considering all relevant circumstances” (Morris, 61 NY2d at 295). The allegation in the information here that the incident occurred “on or about” January 25, 2023 is reasonably close to the undisputed date of December 31, 2022 that it did not impair the ability to investigate and prepare a defense. Indeed, Defendant concedes that he was never in doubt as to the date of the occurrence (although denying that his actions were criminal), and stresses that he was the one who notified the People that the date charged was off by 25 days. Although the better practice might have been for the People to timely file a superseding information with the correct date, the minor discrepancy did not affect Defendant at all, let alone prejudice his rights to mount a defense. Accordingly, the Defense’s motion seeking to dismiss the complaint was facially insufficient is denied. The foregoing constitutes the opinion, decision, and order of the court. Dated: August 26, 2023
