DECISION & ORDER Opinion Defendant moves for an order: (i) deeming the People’s August 22, 2024 Statement of Readiness illusory; (ii) dismissing the criminal court information pursuant to CPL §§30.30(1)(b); 30.30(5-a); and 170.30(1)(e); (iii) precluding the People from introducing at trial any evidence of the defendant’s prior convictions or bad acts; and (iv) granting such additional relief as the Court deems just and proper. For the reasons set forth below, defendant’s motion to dismiss is denied. Factual and Procedural History Pursuant to the misdemeanor complaint and court records, defendant was arrested on May 7, 2024 and issued a Desk Appearance Ticket (“DAT”) to appear in Bronx Criminal Court on May 26, 2024. Defendant appeared as required and arraigned on the charges of Penal Law §§155.25 (petit larceny) and 165.40 (criminal possession of stolen property in the fifth degree) for stealing United States currency (money) from his employer. The complaint states that on or about April 6, 2024 defendant was an employee of an authorized retailer for T-Mobile, Arch Telecom, the business from where money was stolen. The complaint was based on information provided by the Arch Telecom loss prevention officer Alex Rodriguez as to ownership of the money and on Detective Jonathan Arteaga’s review of video surveillance footage maintained at Arch Telecom that showed defendant Caceres removing money from the business storage safe. Detective Arteaga’s stated that the video disclosed defendant placing the money into his backpack and leaving the store several hours later with the backpack. Only the detective attested to the veracity of the complaint. Since the loss prevention officer supporting deposition was also needed to convert the complaint to an information, the matter was adjourned to July 24, 2024 for conversion and for the People to satisfy their discovery obligations. At the July 24, 2024 (58th day) court appearance, the matter remained unconverted and the People remained noncompliant with their discovery obligations. The matter therefore was adjourned to August 29, 2024 for conversion and filing of the People’s Certificate of Compliance (“CoC”). On August 14, 2024 (79th day), off calendar, the People filed a superseding information (“SSI”) charging defendant with the same offenses and factual allegations. The SSI was signed by the Arch Telecom loss prevention officer who also watched the Arch Telecom surveillance video on April 6, 2024 which he stated showed defendant stealing the money. Also off calendar, on August 22, 2024 (87th day) the People filed a CoC and Statement of Readiness (“SoR”). At the August 29, 2024 court appearance, the People proclaimed that they had filed and served an SSI, CoC, and SoR off calendar. The matter was adjourned to September 19, 2024 for defendant to review the discovery and for the court to conduct a discovery conference. In order to have a productive conference, the court ordered the parties to confer and, if any discovery issues remain outstanding, a joint letter should be filed with the Court explaining the reason discovery is required or not required to be produced by the People. On September 19, 2024, defendant’s counsel stated on the record that there were no objections to the People’s CoC. The Court therefore declared the People’s CoC valid. Also no objections were raised as to the People’s statement of readiness. Subsequently, defendant requested an omnibus motion directed at hearings. The matter was adjourned to October 31, 2024 for decision on defendant’s omnibus motion. On October 2, 2024 instead of filing a motion for hearings, defendant moved to dismiss the accusatory instrument based on facial sufficiency. Specifically, defendant argued that the complaint and SSI were jurisdictionally defective since the year that the theft occurred was written incorrectly since it occurred in 2023 and not 2024 as noted in the complaint. In contrast, the DA Case Summary, NYPD Complaint Report, and surveillance footage served on defendant showed April 6, 2023 as the date the crime was committed. On October 17, 2024, the People’s requested additional time to oppose the motion which the Court granted. On October 31, 2024, the People filed and served another SSI changing only the year from April 6, 2024 to April 6, 2023. The facts and charges in the SSI remained unchanged. However, the SSI served on defendant and filed with the court lacked the signature of the deponent Alex Rodriguez the Arch Telecom loss prevention officer. On November 1, 2024, the People filed opposition to defendant’s motion to dismiss. In opposition, the People contended that the document filed on October 31, 2024 corrected the year the theft occurred. Additionally, the People argued that they exercised due diligence in serving and filing an SSI after being notified of the typographical error by defendant. On November 7, 2024, defendant filed a reply which noted that the document the People filed on October 31, 2024 was unsigned and therefore did not constitute a SSI. Since a misdemeanor complaint and information can only be superseded by an information, the document filed on October 31, 2024 failed to correct the date of the offense. As to the People’s good faith and due diligence, defendant argued that the People’s argument was misplaced since a due diligence analysis applies only to a CoC challenge and not a motion to dismiss for facial insufficiency. On November 8, 2024, the People refiled and reserved the October 31, 2024 SSI affixed with deponent Alex Rodriguez’s signature. Legal Analysis A valid and facially sufficient accusatory instrument is a prerequisite for the court to obtain jurisdiction over a defendant. People v. Dreyden, 15 N.Y.3d 101, 103 (2010). For an accusatory instrument to be valid and sufficient it must comply with the requirements of CPL §100.40. The validity and sufficiency of an accusatory instrument can be challenged and raised at any time including on appeal. People v. Kalin, 12 N.Y.3d 225 (2009). Thus the People’s failure to file a valid and facially sufficient accusatory instrument within the CPL §30.30 speedy trial time leaves the court without jurisdiction over the defendant and requires dismissal of the criminal action. People v. Alejandro, 70 N.Y.2d 133 (1987). Relevant is that a misdemeanor complaint must contain a factual portion consisting of non-hearsay allegations which “establish, if true, every element of the offense charged and the defendant’s commission thereof.” CPL §100.40(1)(c). “It is fundamental that the facts in a facially sufficient accusatory instrument must be supported by non-hearsay allegations establishing the elements of each individual charge.” People v. Pinckney, 83 Misc. 3d 1222(A) (Crim. Ct. Bronx Cnty. 2023). Moreover, the factual portion of an accusatory instrument is sufficient if it “provides the defendant ‘with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.’” People v. Dumay, 23 N.Y.3d 518 (2014). The defendant here indisputably was provided with sufficient notice of the allegations to prepare a defense and avoid double jeopardy. “The determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the [accusatory instrument] and bill of particulars must be made on an ad hoc basis considering all relevant circumstances.” People v. Morris, 61 N.Y.2d 290 (1984). Defendant had sufficient notice of the correct year since the DA Case Summary, the NYPD Complaint Report and the surveillance footage served on defendant contained the correct year. People v. Baez, 80 Misc. 3d 1206(A) (Crim. Ct. Bronx Cnty. 2023)(the incorrect date on the accusatory instrument did not impair defendant’s ability to investigate and prepare a defense since defendant knew the date of the incident and the rap sheet, police reports, and discovery contained the correct date); People v. Abate, 82 Misc. 3d 909 (Just. Ct. Albany Cnty. 2024)(accusatory instrument was facially sufficient despite having an incorrect time because the supporting deposition and bill of particulars contained the correct time and the typographical error could not mislead the defendant or prevent him from preparing a defense). Hence, the discovery served on defendant provided sufficient notice of the year of the offense to allow defendant to prepare a defense. People v. Aragon, 28 N.Y.3d 125, 128 (2016)(“test for facial sufficiency ‘is, simply, whether the accusatory instrument defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.’”); see also People v. Hardy, 35 N.Y.3d 466 (2020). However, defendant cites to People v. Hardy, 35 N.Y.3d 466 (2020) to render the complaint jurisdictionally defective. Defendant’s reliance is misguided. In Hardy, the People conceded that the accusatory instrument was facially insufficient since it did not contain sufficient facts to plead the elements of criminal contempt. 35 N.Y.3d 466 (2020). Notably, defendant was charged with violating a two-year order of protection that was issued on September 10, 2013, but the accusatory instrument incorrectly listed the date of the offense as October 25, 2015, which fell after the expiration of the order of protection. After defendant raised the factual error, the trial court permitted the People to orally amend the date of the crime. However, the Court of Appeals held that the accusatory instrument was facially insufficient because the factual portion failed to establish the elements of a crime. The Court also held that a facially insufficient accusatory instrument could only be cured by filing and serving a superseding information. Unlike Hardy, here the SSI filed on August 14, 2024 was facially sufficient since the non-hearsay allegations established the elements of the charged crimes. Specifically, “[a] person is guilty of petit larceny when he steals property.” PL §155.25. Moreover, a person is guilty of criminal possession of stolen property in the fifth degree when “he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof.” PL §165.40. Importantly, defendant did not dispute that the accusatory instrument contained sufficient non-hearsay facts to establish the elements of the crimes charged. Rather, defendant argued that SSI filed on August 14, 2024 was facially insufficient since it contained the incorrect year of the theft. Contrary to defendant’s argument, an incorrect year of the offense does not render the accusatory instrument facially insufficient when a precise date is not an element of the crimes charged. “Where the accusatory instrument sets forth all the elements of the charged crime, a minor discrepancy as to the time of the incident does not require an amendment to render the charge facially sufficient.” People v. Abate, 82 Misc.3d 989 (2024). Hence once the complaint was converted to an information and a timely record of present readiness was made by the People, they did “all that is required of them to bring the case to a point where it may be tried”. See, People v. England, 84 N.Y.2d 1, 4, (1994); People v. Kendzia, 64 N.Y.2d 331, 337, (1985). Consequently, this court holds that, the under these facts, the incorrect year listed for when the theft occurred is an inconsequential minor scrivener’s error. A precise year was not required for the accusatory instrument to be facially sufficient, thus the incorrect year does not constitute a jurisdictional defect that would require a correction through the filing of a superseding information. See, e.g., People v. Baez, 80 Misc. 3d 1206(A) (Crim. Ct. Bronx Cnty. 2023)(misdemeanor complaint which incorrectly listed the date of the offense was facially insufficient since a precise date was not an element of the crimes); People v. Minott, 70 Misc. 3d 1217(A) (Crim. Ct. N.Y. Cnty. 2021)(error in the name of the location where crime was committed constituted a typographical error and not a jurisdictional defect); People v. Morris, 61 N.Y.2d 290 (1984)(“lack of a precise date is not a fatal defect if it is not a substantive element of the crime.”). Relevant under CPL 100.50(1) is that at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor’s information, another information or, as the case may be, another prosecutor’s information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument is, with respect to such offense, superseded by the second and, upon the defendant’s arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. Thus, the People were not forbidden from filing an SSI after filing their CoC and SoR. People v. Armstrong, 163 Misc. 2d 588 (App. Term, 1st Dept. 1994)(“People’s filing of the second information to add a new charge and supplement factual allegations of the first information does not establish that the People were not ready to timely proceed to trial on the original…charge, nor does it retroactively invalidate the People’s declaration of readiness.”). Accordingly, the People’s CoC and SoR dated August 22, 2024 and subsequent SSI are deemed valid since the SSI with the corrected year was served on defendant and filed with the court before the entry of a guilty plea or commencement of trial. CPL §100.50; see, People v. Torres, 78 Misc. 3d 1206(A) (Crim. Ct. Queens Cnty. 2023)(noting that the People can file another information following a facially sufficient accusatory instrument at any time prior to the entry of a guilty plea or commencement of a trial). Accordingly, the Court finds that the accusatory instrument was facially insufficient despite originally having an incorrect year since the accusatory instrument contained enough facts to support the charged offenses and defendant was provided with sufficient notice to investigate and prepare a defense. Preclusion of Defendant’s Prior Bad Acts As to defendant’s request for preclusion of defendant’s prior convictions or bad acts pursuant to Sandoval/Ventimiglia, defendant’s request is referred to the trial court. Conclusion The Court finds that incorrect date on the accusatory instrument did not render the accusatory instrument facially insufficient. Moreover, the People fixed the incorrect date on the accusatory instrument when they filed a valid SSI on November 8, 2024. Hence, defendant’s motion to dismiss is denied and the Court orders that the matter be set for hearings and trial. This constitutes the decision of the court. Dated: December 4, 2024
