The People of the State of New York, v. Nievas, Defendant. (2023)

The defense has filed a C.P.L. § 30.30 motion. The People charge three offenses in this case: (1) third-degree criminal trespass in the right-of-way or yard of a railroad or rapid transit; (2) public lewdness; and (3) second-degree harassment. The motion alleges that the People have never validly stated ready for trial because the information is defective as to all three of these charges. The People respond that they "in error" charged third-degree criminal trespass in the right-of-way or yard of a railroad or rapid transit. They do not make any arguments defending the other two charges.

Upon considering the defense's motion, the People's response, and the court file, the court grants the motion.

LEGAL ANALYSIS

Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have 90 days from filing their complaint to validly state ready for trial. It has always been true that, in order to validly state ready for trial, the People must first file a facially sufficient information. (People v. Colon, 59 NY2d 921 [1983]; People v. Maslowski, 187 AD3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021]).

Since the 2020 reforms, a statement of readiness now "shall not be valid" unless "all counts . . . meet the requirements of sections 100.15 and 100.40" of the criminal procedure law. (C.P.L. § 30.30[5-a]). Under sections 100.15 and 100.40 of the criminal procedure law, an information has two portions. The first is the accusatory portion. There, the information must "designate the offense or offenses charged." (C.P.L. § 100.15[2]). The second is the factual portion. There, the information must allege non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offense. (People v. Sanson, 59 Misc 3d 4, 6 [App. Term, 2d Dep't 2018]; see also C.P.L. §§ 100.40[1][c]; 100.15[3]; People v. Sumter, 151 AD3d 556, 558 [1st Dep't 2017]).

The standard for an information's factual allegations in C.P.L. § 100.40 is called a "prima facie" case. (People v. Alejandro, 70 NY2d 133, 138 [1987]). The prima facie standard is "necessary because of the 'unique function that an information serves' " under our criminal procedure law. (People v. Parsons, 69 Misc 3d 11, 14 [App. Term, 1st Dep't 2020] [quoting Alejandro, 70 NY2d at 137]). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which the People "need not, at any time prior to trial, present actual evidence." (Alejandro, 70 NY2d at 137-38). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. (Sanson, 59 Misc 3d at 6 [internal quotation marks omitted]). So long as the factual allegations "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." (Id. [internal quotation marks omitted]).

Under the 2020 reforms, a valid statement of readiness requires that the information must be facially sufficient as to all its charges. (C.P.L. § 30.30[5-a]; People v. Mueller, 2023 NY Slip Op. 50168[U] [Crim. Ct., Queens County 2023]; People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023]; People v. Herrera, 73 Misc 3d 334 [Crim. Ct., Bronx County 2021]). The Legislature designed this section "to abrogate decisional law that authorized the prosecution to answer 'ready for trial' " on an information that was only facially sufficient as to some of the charges. (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 30.30).

The information here contains both the accusatory and factual portions. The accusatory portion lists three charges: third-degree criminal trespass in the right-of-way or yard of a railroad or rapid transit, P.L. § 140.10[g]; public lewdness, P.L. § 245.00; and second-degree harassment, P.L. § 240.26[3]. (Information at 1). It does not list a subsection for public lewdness and, in a single count, recites the elements for all three of that statute's separate subsections—(a), (b)(i), and (b)(ii). (Id.). The factual portion alleges:

Deponent states that he is informed by the complainant . . . that at the above mentioned date, time and place of occurrence she was in her home when she observed the defendant . . . climb onto a shed in her fenced in yard.

Deponent states states [sic] that he is informed by the complainant that she observed the defendant rubbing is [sic] exposed penis while he appeared to be looking inside of her window.

Deponent states that he is informed by the complainant that she is the legal custodian of the above mentioned premises and that the defendant did not have permission or authority to enter or remain on the premises.

(Information at 2).

The defense first addresses the count charging third-degree criminal trespass in the right-of-way or yard of a railroad or rapid transit, P.L. § 140.10[g]. A person commits that offense when "he knowingly enters or remains unlawfully in a building or upon real property . . . where the property consists of a right-of-way or yard of a railroad or rapid transit railroad which has been designated and conspicuously posted as a no-trespass railroad zone." The defense argues that "there is no one fact averred which demonstrates that the location in question was a railroad or rapid transit right-of-way or yard." (Def. Mot. at 24). "Nor are there any facts averred that the area in question had been designated and conspicuously posted as a no-trespass railroad area." (Id.). The People respond that this charge was "in error," conceding that "the facts do not make out a trespass on property that consists of a right of way or yard of a railroad or rapid transit railroad." (Pr. Resp. at 8 [internal quotation marks omitted]). "Nonetheless," the People argue, "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense, the complaint is still facially sufficient." (Id. [internal quotation marks omitted]).

The court agrees with the defense. The appellate courts have repeatedly affirmed that the plain text of C.P.L. § 100.40 requires that an information allege facts establishing "every element" of the offense charged. (E.g., Sumter, 151 AD3d at 556; People v. Vanderveer, 71 Misc 3d 133[A], at *1 [App. Term, 2d Dep't 2021] [dismissing where the informations did not establish "every element" of the offenses]; People v. Bank of America, 71 Misc 3d 15 [App. Term, 2d Dep't 2021] [dismissing where the information did not establish "every element" of an offense, but upholding where it did establish "every element" of an offense]; People v. Maeder, 69 Misc 3d 135[A], at *1-*2 [App. Term, 2d Dep't 2020] [dismissing where the information did not establish "every element" of the offense]; People v. Pitti, 63 Misc 3d 164[A], at *2 [App. Term, 2d Dep't 2019] [dismissing where an information did not establish "every element" of the offense]; People v. Sanson, 59 Misc 3d 4, 8 [App. Term, 2d Dep't 2018] [dismissing where an information did not establish "every element" of the offense]). As a result, it is clear that "an information is facially deficient if it entirely fails to address an element of the offense charged." (People v. Konieczny, 2 NY3d 569, 576 [2004]). Even the dissent in Sumter—which sought to relax the "every element" requirement—conceded that point. (Sumter, 151 AD3d at 559-63 [Andrias, J., dissenting]). Here, as the People admit, the information entirely fails to address an element (or two) of P.L. § 140.10[g]. Therefore, it is facially insufficient under C.P.L. § 100.40.

The court also agrees with the defense that the count charging public lewdness is defective because "it fail[s] to set forth which subdivision of P.L. § 245.00" it charges. (Def. Mot. at 26). The People do not respond to this argument at all. Criminal Procedure Law § 100.15[2] requires that an information "designate the offense or offenses charged." Here, by including every subsection of public lewdness—each of which addresses a different offense with different elements—the People have made it wholly unclear which offense they are charging. "What is clear," however, "is that the defendant is entitled to know what he's being charged with and the way to do so is to list the charge in the accusatory instrument." (People v. Peterson, 49 Misc 3d 1123, 1127 [Dist. Ct., Nassau County 2015]). "The court nor the accused should have to resort to guesswork to determine the specific charge." (Id.). Otherwise, the information fails to accord with C.P.L. § 100.15[2].

Finally, the court also agrees with the defense that the count charging second-degree harassment, P.L. § 240.26[3], is facially insufficient. The People do not respond to this argument at all, either. A person is guilty of that charge when, "with intent to harass, annoy or alarm another person," they "engage[ ] in a course of conduct or repeatedly commit[ ] acts which alarm or seriously annoy such other person and which serve no legitimate purpose." (P.L. § 240.26[3] [emphases added]). As the defense rightly points out, there are no allegations in the information, whatsoever, that allege a "course of conduct" or "repeated[ ]" acts.

In sum, the People stated ready on an information that did not "meet the requirements of sections 100.15 and 100.40" of the criminal procedure law. (C.P.L. § 30.30[5-a]). Therefore, the court "shall not" find their statement of readiness "valid." (Id.). From the filing of the accusatory instrument on September 11, 2022, to when the defense filed the instant motion on December 13, 2022, 93 days elapsed. The People raise no periods within that time that are excludable under C.P.L. § 30.30[4]. Accordingly, the case must be dismissed. (C.P.L. § 30.30[1][b]).

The defense's remaining motions are moot.

The foregoing constitutes the order and decision of the court.

Dated: March 13, 2023

Queens, NY

Wanda L. Licitra, J.C.C.

Wanda L. Licitra, J.