PEOPLE v. RODRIGUEZ (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered January 14, 2020, convicting him of attempted grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged in a misdemeanor information, inter alia, with attempted grand larceny in the fourth degree, a class A misdemeanor.  Thereafter, he pleaded guilty to attempted grand larceny in the fourth degree and was sentenced, as promised, to one day in jail, with credit for time served.  The defendant appeals, arguing that the misdemeanor information was jurisdictionally defective because the allegations therein were not facially sufficient.

“To be facially sufficient, an information must set forth nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof and which supply [the] defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v. Wheeler, 34 N.Y.3d 1134, 1135, 118 N.Y.S.3d 68, 141 N.E.3d 136 [citations and internal quotation marks omitted];  see CPL 100.40[1];  People v. Kalin, 12 N.Y.3d 225, 228–230, 878 N.Y.S.2d 653, 906 N.E.2d 381).

“Failure to assert sufficient nonhearsay factual allegations is a jurisdictional defect” (People v. Jones, 9 N.Y.3d 259, 262, 848 N.Y.S.2d 600, 878 N.E.2d 1016, citing People v. Alejandro, 70 N.Y.2d 133, 134–135, 517 N.Y.S.2d 927, 511 N.E.2d 71), and “may be challenged on appeal even though a defendant never raised the alleged insufficiency prior to entering a guilty plea” (People v. Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381).

The People bear the burden of making a “prima facie case for the offense charged in the text of [an] information” (People v. Jones, 9 N.Y.3d at 261, 848 N.Y.S.2d 600, 878 N.E.2d 1016;  see CPL 100.40[1]).  “Unlike misdemeanor or felony complaints, which do not require such a showing in an accusatory instrument, the prima facie requirement is specific to informations” (People v. Jones, 9 N.Y.3d at 261–262, 848 N.Y.S.2d 600, 878 N.E.2d 1016;  cf.  CPL 100.40[4]).  “[S]o 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” (People v. Kalin, 12 N.Y.3d at 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 [internal quotation marks omitted];  see People v. Smalls, 26 N.Y.3d 1064, 1066, 23 N.Y.S.3d 134, 44 N.E.3d 209).

Here, contrary to the defendant's contention, the misdemeanor information satisfied the requirements of CPL 100.40(1) (see People v. Kalin, 12 N.Y.3d at 230–31, 878 N.Y.S.2d 653, 906 N.E.2d 381;  People v. Villegas, 54 Misc.3d 137[A], 2017 N.Y. Slip Op. 50134[U], 2017 WL 487640 [App. Term., 2d Dept., 2d, 11th & 13th Jud. Dists.] People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 [App. Term., 2d Dept.];  cf.  People v. Jones, 9 N.Y.3d at 262–263, 848 N.Y.S.2d 600, 878 N.E.2d 1016).

BARROS, J.P., MILLER, GENOVESI and TAYLOR, JJ., concur.