ELISA S. KOENDERMAN, J.
The defendant, Stuart Friedman, is charged by misdemeanor information
To be sufficient, an information must allege "facts of an evidentiary character" (CPL 100.15 [3]) which provide reasonable cause to believe that the defendant committed the offense charged (see CPL 100.40 [1] [b]). Further, the nonhearsay factual allegations of the information and any supporting depositions, if accepted as true, must establish the defendant's
Thus, to satisfy the prima facie case requirement an information must allege completely every element of the offense charged and those allegations must be nonhearsay (see People v Casey, 95 N.Y.2d 354, 362 [2000]; Kalin, 12 NY3d at 229; see also People v Fernandez, 20 N.Y.3d 44, 47 [2012]; People v Dreyden, 15 N.Y.3d 100, 103 [2010]). To protect the defendant's fundamental right to fair notice and prevent double jeopardy, an information must "factually describe the elements of the crime and the particular acts of the defendant constituting its commission" (Casey, 95 NY2d at 363). An information which violates the reasonable cause requirement by failing to allege sufficient evidentiary facts to support an element of the crime charged is jurisdictionally defective (see Fernandez, 20 NY3d at 47; Dreyden, 15 NY3d at 103).
The superceding information alleges that on July 2, 2014, at 111-45 44th Avenue in Queens County, Barbara Sheehan "observed the defendant Stuart Friedman in front of the residence of [the] complainant, Marvin Friedman." It further alleges that the deponent, Sergeant Joseph Cancelino, "observed the defendant in front of the above mentioned location, which is the residence of [the] complainant, Marvin Friedman." Finally, it alleges that Sgt. Cancelino "obtained and reviewed a teletype printout from the New York State Police Information Network [NYSPIN], whose records are made and obtained in the regular course of business," which shows that an order of protection directing the defendant to stay away from the complainant's home had been issued on the complainant's behalf and was in effect against the defendant, and that the defendant was served with the order in court.
Although the information alleges that Barbara Sheehan observed the defendant at the complainant's residence, it neither defines her relationship to the complainant nor describes the basis for her knowledge that the location is his residence. It is fair to infer that Barbara Sheehan knows the defendant's identity, regardless of any relationship between them. A person's identity is subject to public knowledge. When a person appears in public, he exposes his identity. But while a person's identity is open to the public, the place that he lives is not. A
Moreover, Sgt. Cancelino's allegations regarding the issuance, terms and service of the order of protection are uncorroborated hearsay not subject to any exception. Despite the Sergeant's declaration that the NYSPIN teletype printout upon which his allegations are based was "made and obtained in the regular course of [NYSPIN] business," the facts alleged in the information do not establish its admissibility as a business record (see CPLR 4518 [a]; Penal Law § 60.10; cf. People v Ortega, 15 N.Y.3d 610, 616-617 [2010]). Sgt. Cancelino, as an employee of the NYPD, is not in a position to attest to the record keeping of NYSPIN, a different agency of which he is not a member. Without a supporting deposition from a custodian of the
Additionally, the teletype printout advises the recipient to "CONFIRM COMPLETE ORDER OF PROTECTION WITH LAW ENFORCEMENT" and contains the admonition: "WARNING—THE FOLLOWING IS AN NCIC PROTECTION ORDER RECORD. DO NOT SEARCH, DETAIN OR ARREST BASED SOLELY ON THIS RECORD. CONTACT ENTERING AGENCY TO CONFIRM STATUS AND TERMS OF PROTECTION ORDER." Accordingly, the teletype printout cannot confirm the existence or contents of the order of protection. Further, Sgt. Cancelino does not allege that he observed a certified copy of the order of protection. Had he done so, arguably he would have personal knowledge of the order's existence. His review of a teletype printout, which cannot confirm either the status or terms of the order of protection, does not provide him with personal knowledge of its existence and contents.
Furthermore, the uncertified copy of the order of protection which the People subsequently filed
In contrast, here there are no first-party allegations from the complainant that an order of protection directing the defendant to stay away from his home had been issued on the complainant's behalf and was in effect against the defendant. Moreover, there are no first-party allegations from the complainant that he observed the defendant engage in conduct proscribed by the order. Indeed, the complainant has not corroborated that the location where Barbara Sheehan and Sgt. Cancelino observed the defendant is his home. Furthermore, unlike the detective in Casey, who viewed a certified copy of the order of protection and therefore had personal knowledge of it (id. at 361-362), Sgt. Cancelino, having seen only a NYSPIN teletype printout, has only hearsay knowledge of the order. Without the requisite first-party allegations, or a certified copy of the order of protection, the information lacks nonhearsay facts confirming the issuance, terms and service of the order.
Accordingly, because the information fails to contain non-hearsay factual allegations establishing that the defendant intentionally disobeyed a court mandate (see Penal Law § 215.50 [3]), it is jurisdictionally defective.
Pursuant to CPL 30.30 (1) (b), the People must be ready for trial within 90 days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months.
Whether the People have satisfied their obligation to be ready under CPL 30.30 generally is determined by calculating the time between the filing of the first accusatory instrument and the People's statement of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional periods of post-readiness delay which are attributable to the People and ineligible for any statutory exclusions (see People v Cortes, 80 N.Y.2d 201, 208 [1992]). Although a
The defendant was arraigned on the original misdemeanor complaint on July 3, 2014 and the court adjourned the matter to July 29, 2014 for the People to convert the complaint to an information. Twenty-six days are chargeable to the People for this adjournment.
On July 29, 2014, the People filed and served the instant superceding information and announced ready for trial. The court adjourned the matter to September 25, 2014 for open file discovery. A valid accusatory instrument is a jurisdictional prerequisite for trial (see Dreyden, 15 NY3d at 103; People v Mortoza, 45 Misc.3d 658, 661 [Crim Ct, Queens County 2014]). Moreover, in a misdemeanor prosecution, a defendant must be tried upon a facially sufficient information (see CPL 170.65 [1]; 100.40 [1]; see also People v Weinberg, 34 N.Y.2d 429, 431 [1974]). Since the information does not contain nonhearsay factual allegations establishing every element of the offense charged, it is defective (see CPL 170.35 [1] [a]). Because the People lack a valid accusatory instrument upon which to try the defendant, their statement of readiness is illusory (see People v Sherman, 24 Misc.3d 344, 351 [Crim Ct, NY County 2009]; cf. People v Caussade, 162 A.D.2d 4, 8 [2d Dept 1990]). Nevertheless, the adjournment is excludable as a period of delay for discovery by stipulation (see People v Thomas, 26 Misc.3d 144[A], 2010 NY Slip Op 50441[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Zero days are chargeable to the People.
On September 25, 2014, the People provided open file discovery and the court adjourned the matter to November 17, 2014 for trial. This adjournment, which afforded defense counsel the opportunity to review the discovery by stipulation and prepare for trial, is properly excludable as a period of delay which is "caused by the defendant for his own benefit" (People v Worley, 66 N.Y.2d 523, 527 [1985]; see also People v Kopciowski, 68 N.Y.2d 615, 617 [1986]; People v Heine, 238 A.D.2d 212 [1st Dept 1997]). Zero days are chargeable to the People.
On November 17, 2014, the People announced ready but the court adjourned the matter to January 28, 2015 for trial. Since the People's statement of readiness is illusory because the accusatory instrument is invalid, 72 days are chargeable to them for this adjournment (see Sherman, 24 Misc 3d at 351; cf. Caussade, 162 AD2d at 8).
Consequently, 103 days are chargeable to the People to date. Since more than 90 days have elapsed since the defendant's arraignment, the People have exhausted their time to be ready for trial (see CPL 30.30 [1] [b]).
In conclusion, because the information is jurisdictionally defective and the People's speedy trial time has expired, the defendant's motion to dismiss is granted.