People v. Casey

OPINION OF THE COURT

Defendant appeals, leave having been granted by a Judge of this Court, from the portion of an order of the Appellate Term affirming his conviction of the misdemeanor crime of criminal contempt in the second degree. Defendant was convicted of violating a Temporary Order of Protection issued by the Nassau County District Court on August 15, 1996. The order was made in connection with a harassment charge filed against defendant; that charge was still pending when the contempt allegedly occurred during the evening of December 2, 1996.

A Nassau County Police Department detective was assigned to investigate the complainant’s report of the violation of the Temporary Order of Protection. The evidence at both the suppression hearing and the trial was that the detective initially verified the existence of the order from police department records. He then interviewed the complainant, at which time she showed him a certified copy of the order. The detective took a signed deposition from the complainant and left word at defendant’s residence to call him at police headquarters. When defendant called, the detective had him verify that he was the person served in court with the order. They agreed that defendant would surrender on December 9 rather than be arrested that evening. When defendant appeared at headquarters, he was advised of his Miranda rights and questioned concerning his conduct during the evening of December 2. He gave oral and written statements impliedly admitting the acts alleged to have violated the order.

Defendant’s motion to suppress his statements to the police was denied. Thereafter, a jury convicted him of, among other things, criminal contempt. The Appellate Term affirmed the criminal contempt conviction, rejecting defendant’s arguments that the District Court information was jurisdictionally defective and that his statements to the police were inadmissible ( 181 Misc 2d 744 ).

I

Defendant’s primary point, raised for the first time before the Appellate Term, is that the District Court information charging him with criminal contempt was jurisdictionally

While we hold that defendant’s challenge to the information does not warrant reversal, we cannot agree with the Appellate Term’s rationale for that result. The record suggests that defendant waived only a reading of the information (previously furnished to his attorney), not a reading of his procedural right to be prosecuted by information. Thus, there is an insufficient evidentiary basis for any finding of a knowing and intelligent (albeit implied) waiver of the right to be prosecuted upon an information (see, People v Weinberg, 34 NY2d 429 , 431; cf., People v Connor, supra).

Moreover, as the Appellate Term acknowledged, the accusatory instrument here was denominated, and purported to be, a misdemeanor information with a supporting deposition, not a misdemeanor complaint. That the instrument would have qualified as a misdemeanor complaint did not make it one. Since the accusatory instrument here was in fact a local criminal court information, and not a misdemeanor complaint, the District Court would not have had the statutory obligation to inform defendant that he “may not be prosecuted [on a misdemeanor complaint] * * * unless he consents” (CPL 170.10 [4] [d]). Therefore, in contrast to People v Connor, no waiver of the right to be tried upon a statutorily valid information can be implied from defendant’s silence and proceeding to trial.

Nonetheless, defendant’s contentions regarding the defectiveness of the information do not require reversal. Although annexing the Temporary Order of Protection to the information would have been the far better practice, and would have largely obviated defendant’s procedural challenge here,

So long as the factual allegations of an information give an accused notice sufficient to prepare a defense arid 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 (see, People v Jacoby, 304 NY 33 , 38-40; People v Knapp, 152 Misc 368 , 370, affd 242 App Div 811 ; People v Shea, 68 Misc 2d 271 , 272; see also, People v Allen, 92 NY2d 378 , 385; People v Miles, 64 NY2d 731 , 732-733). As to defendant’s objection that, without attachment of the Temporary Order of Protection, the accusatory instrument here failed to include any non-hearsay allegation that the Temporary Order of Protection was outstanding and in effect on the December 2 date of the alleged offense, the complainant’s supporting deposition states clearly and succinctly that a Temporary Order of Protection had been issued, prohibiting defendant from engaging in harassing or criminal conduct against her. She also averred that she personally observed specifically described conduct of the defendant on December 2 that violated the order. At the very least, the fair implication of these averments established her firsthand knowledge that the order had been granted, was in effect and was violated by defendant’s harassing dr criminal conduct on the date of the offense. Any challenge to those allegations, including whether the order was in effect on the date of the contumacious conduct, was a matter to be raised as an evidentiary defense to the contempt charge, not by insistence that this information was jurisdictionally defective without annexation of the order to that accusatory instrument. Defendant’s failure to raise an issue before the District Court as to whether the order was in effect when the offense allegedly occurred thus precludes its consideration here.

Moreover, a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception (see, Marks et al., New York Pretrial Criminal Procedure § 3.7, at 109 [7 West’s NY Prac Series 1996]; see also, People v Belcher, 302 NY 529 , 534-535).

Here, the detective averred in the factual portion of the information that he was “advised by the complainant” that defendant had violated the Temporary Order of Protection, and specifically described the conduct constituting the offense, referring to the complainant’s supporting deposition. The information then alleges “[t]he defendant was advised and served a copy of the Order of Protection in court on 8-15-96.” It is not clear from a facial examination of the information whether that allegation relating to defendant’s knowledge of the order was based only upon the complainant’s advice (she did not aver this in the supporting deposition, however), or whether it was based upon the detective’s direct knowledge or some exception to the hearsay rule, either of which would have satisfied CPL 100.40 (1) (c). Thus, because it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40 (1) (c), the information is subject to a motion to dismiss (see, Matter of Rodney J., 83 NY2d 503 , 507). Had the motion been made, however, we know from the record of the suppression hearing and trial that the defect was readily curable.

The detective’s allegation that defendant was served with the order of protection was admissible under at least two hearsay rule exceptions. First, the complainant had shown him a certified copy of the order, containing defendant’s signed acknowledgment of receipt of service, which the clerk of the

The issue thus comes down to whether defendant’s failure to raise the absence of an unequivocal non-hearsay allegation of defendant’s physical receipt of the Temporary Order of Protection by a timely pretrial motion precludes consideration of that defect for the first time on appeal. This in turn requires us to revisit our decision in People v Alejandro ( 70 NY2d 133 ). Defendant urges that Alejandro requires reversal here despite the absence of pretrial objection to any pleading deficiency. Defendant points out that in Alejandro we did not differentiate for “jurisdictional” purposes between the two “prima facie” requirements of CPL 100.40 (1) (c) — that first, there must be factual allegations establishing every element of the offense and second, those allegations must be “non-hearsay” (see, id., 70 NY2d, at 137 ).

The Alejandro case itself, however, actually involved a failure to satisfy the first requirement of CPL 100.40 (1) (c), in that there was a total absence of pleading of one of the elements of the crime of Resisting Arrest, i.e., that the defendant had resisted an “authorized” arrest (Penal Law § 205.30 [emphasis supplied]; People v Alejandro, supra, at 135-136 ). Therefore, Alejandro’s suggestion that the second, non-hearsay requirement of CPL 100.40 (1) (c) was “jurisdictional” and, thus, non-waivable and reviewable on appeal without preservation was not essential to the Court’s holding.

Ill

Now squarely confronted with the issue whether a hearsay pleading violation of CPL 100.40 (1) (c) is jurisdictional and non-waivable, we conclude that it is not. That conclusion is based on three grounds. First, such a holding would be at

A.

Well before enactment of the Criminal Procedure Law, this Court had incrementally developed a clear set of rules governing both criminal pleading requirements and whether violation of those requirements required preservation.

We earlier held that “a fundamental * * * basic principle of justice and fair dealing” (People v Zambounis, 251 NY 94 , 97) requires that an accusatory instrument factually describe the elements of the crime and the particular acts of the defendant constituting its commission. That was deemed necessary to give an accused fair notice and prevent double jeopardy (see, id., at 96 ). We also determined that this requirement, of constitutional dimension, is not waivable (see, People v Scott, 3 NY2d 148 , 152 [“However, objections to the jurisdiction of the court are not waived, nor is the objection that the information does not state a crime”] [emphasis supplied]).

Additionally, well before the enactment of the Criminal Procedure Law, this Court developed rules that criminal informations should be based upon non-hearsay allegations, just as now required under CPL 100.40 (1) (c) (see, People v Bertram, 302 NY 526 [when the information forms basis for a warrant of arrest]; People v James, 4 NY2d 482 [also when the information is used solely as a pleading]; see also, People v Jacoby, 304 NY 33 , supra; People v Brous, 296 NY 1028 ). We did so for the very same reasons expressed in People v Alejandro (supra, 70 NY2d, at 139 ), that is, to protect a defendant “against groundless criminal proceedings” by providing “reasonable guarantees against baseless prosecutions not predicated on probable cause” (People v James, supra, at 485-486 ).

This Court’s decision in People v Belcher ( 302 NY 529 , supra) made an important contribution to our pre-CPL accusatory instrument jurisprudence. In Belcher, a drunken driving case, we held that the non-hearsay allegation requirement would be met if the allegation itself would be admissible at trial under an exception to the hearsay rule (there, the intoxicated defendant’s admission to operating his vehicle) (see, id., at 535).

To summarize, our pre-CPL accusatory instrument jurisprudence was settled in several respects. First, a failure to allege an element of the crime in an information was deemed a non-waivable jurisdictional defect that was reviewable on appeal even in the absence of a timely objection. Second, criminal informations had to be based upon non-hearsay factual allegations in order to be legally sufficient. Third, hearsay allegations were considered akin to defects in form, and were therefore waived absent challenge before trial. Finally, an informant could satisfy the non-hearsay requirement by an allegation admissible under a hearsay rule exception.

B.

Nothing in the language or legislative history of CPL 100.40 (1) (c) evinces a purpose to tighten the criminal pleading rules of our earlier decisions. To the contrary, other provisions show an intent to relax the pleading requirements of prior statutory and decisional law (see, CPL 120.20 [1] [permitting a misdemeanor complaint, which may include hearsay, to serve not only as the basis for initiating a criminal action, but also for issuance of an arrest warrant]; People v Dumas, 68 NY2d 729 , 731). In this sense, the CPL loosened the prior case

The statutory validation of the use of hearsay-based accusatory instruments in such important respects negates any inference of a legislative intent, in enacting CPL 100.40 (1) (c), to overrule our earlier decisions that hearsay objections to a criminal information were not jurisdictional, but waived absent preservation before trial.

C.

A holding that hearsay allegation violations of CPL 100.40 (1) (c) are jurisdictional and non-waivable would also contravene the principles underlying the narrow exceptions to the preservation rule created by our precedents. As early as 1858 in Cancemi v People ( 18 NY 128 ), and 1887 in People v Bradner ( 107 NY 1 ), we identified the categories of procedural defects in criminal cases that were non-waivable and, thus, reviewable as an error of law without preservation at the trial level. They were the instances where the court lacked “jurisdiction of the subject matter, and where such jurisdiction exists, a change * * * of the mode of proceeding * * * so extensive as to convert the case from a judicial proceeding into a mere arbitration” (Cancemi, at 136 [emphasis supplied]). Bradner described the types of procedural defects not requiring preservation to include those where “the court had no jurisdiction, or that the constitutional method of trial by jury was disregarded * * * or some other defect in the proceedings, which could not be waived or cured and is fundamental” (Bradner, supra, 107 NY, at 4 [emphasis supplied] [citation omitted]).

The inclusion of hearsay allegations in a local court information cannot deprive the tribunal of subject matter jurisdic

“Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction” (Bell v Hood, 327 US 678 , 682).

Nor is a hearsay pleading violation of CPL 100.40 (1) (c) “a change * * * of the mode of proceeding * * * so extensive” that it should be non-waivable and reviewable without preservation (Ca ncemi, supra, at 136 ). From the inception of our case law on this subject, the failure to preserve has been excused for only the most fundamental procedural irregularities. As we reiterated in a recent exposition of our mode of proceedings error doctrine, it is only “where ‘the error complained of goes to the essential validity of the proceedings conducted below’ such that ‘the entire trial is irreparably tainted,’ [that] it need not be preserved to present a question of law reviewable by this Court” (People v Agramonte, 87 NY2d 765 , 770 [quoting People v Patterson, 39 NY2d 288 , 295-296] [emphasis supplied]). Pleading errors involving omission of elements of the charged crime are fundamental. They impair a defendant’s basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy. Hearsay pleading defects do not implicate any of those basic rights of an accused. Indeed, as earlier discussed, both statutory and decisional law have recognized that a criminal prosecution can validly proceed on a hearsay-based accusatory instrument. We have even held that the statutory right to be prosecuted on a non-hearsay accusatory instrument can be waived by implication (see, People v Connor, 63 NY2d 11 , supra).

Conclusion

For all of the foregoing reasons, we conclude that hearsay pleading defects in the factual portion of a local criminal court information must be preserved in order to be reviewable as a matter of law on appeal. Because defendant failed to interpose a timely objection or motion before the trial court which addressed the hearsay defect in the misdemeanor information in this case, we are precluded from considering it. Defendant’s remaining argument for reversal is without merit.

Accordingly, the order of the Appellate Term, insofar as appealed from, should be affirmed.

Chief Judge Kaye and Judges Smith, Ciparick, Wesley and Rosenblatt concur.

Order, insofar as appealed from, affirmed.