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

Defendant Jemel Holiday, charged with one count of Forcible Touching [PL § 130.52(1)] and one count of Forcible Touching [PL § 130.52(2)] moves, by notice of motion dated February 10, 2023, for an order: 1) dismissing the information for facial insufficiency pursuant to CPL §§ 170.30 and 170.35; and 2) reserving the right to make further motions pursuant to CPL § 255.20(3).

For reasons that follow, Mr. Holiday's motion to dismiss the information is GRANTED in its entirety. The Court will stay sealing for thirty (30) days.

Background and Procedural History

Mr. Holiday was arrested on October 25, 2022, in connection with an incident that occurred on October 25, 2022, where he is alleged to have grabbed the complainant by the shoulder and touch her buttocks with an open hand and without her consent in the subway station at 14th Street and 8th Avenue, in New York County.

Mr. Holiday was arraigned on October 27, 2022, on a complaint in which the top count was a class A Misdemeanor, Forcible Touching, and bail was set. The case was adjourned to October 31, 2022, for conversion.

On October 31, 2022, the People filed their supporting deposition and the complaint was deemed an information. The case was then adjourned for trial to December 13, 2022.

On December 13, 2022, the People had not filed a certificate of compliance (COC) and stated that they were not ready for trial. The case was then adjourned for trial on January 26, 2023.

On January 19, 2023, the People filed an automatic disclosure form (ADF), COC, and certificate of readiness (COR), off-calendar.

On January 24, 2023, the People filed a supplemental certificate of compliance (SCOC), off calendar.

On January 26, 2023, the Court acknowledged the People's filings and the People stated ready for trial. The case was then adjourned for trial on February 14, 2023.

On January 30, 2023, the People filed another SCOC, off-calendar.

On February 7, 2023, the People filed another SCOC, off-calendar.

On February 10, 2023, Defense counsel filed the instant motion to dismiss, off calendar.

On February 14, 2023, a motion schedule was set and the case was adjourned to March 31, 2023, for decision.

Discussion

Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. People v. Alejandro, 70 NY2d 133 (1979). To be facially sufficient, an information must, along with any supporting depositions, contain factual allegations of an evidentiary character demonstrating "reasonable cause" to believe the defendant committed the offense charged. CPL § 100.15(3); People v. Dumas, 68 NY2d 729 (1986); People v. Dreyden, 15 NY3d 100 (2010). Additionally, an information must contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. CPL § 100.40(1).

Here, the information alleges, in pertinent part, that "[o]n or about October 26, 2022, at about 07:47 PM, in the subway station at 14th Street and 8th Avenue; in the County and State of New York, the defendant intentionally, and for no legitimate purpose, forcibly touched the sexual and other intimate parts of another person . . . ." The information was signed by Police Officer Matthew Mcmahon on October 26, 2022 at approximately 6:20 PM. A review of the Court's case file, including the defendant's Fingerprint Response Summary, also known as the defendant's RAP sheet, and the People's ADF dated January 24, 2023, indicate that the incident in the instant matter occurred on October 25, 2022, the same date listed as the defendant's arrest on the defendant's RAP sheet. As such, the incident date of October 26, 2022, listed on the information in the instant matter is factually incorrect.

Though not an issue specifically raised in Defense Counsel's motion to dismiss, as stated previously, facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution  ¹ and can be raised sua sponte by the Court to assure the court retains subject matter jurisdiction over a case.² In fact, CPL 140.45 requires an arraignment court to review an accusatory instrument and dismiss said instrument if it is found to be facially insufficient.³ To rectify an incorrect date on an information, the Criminal Procedure Law requires the People to file a superseding information (SSI) containing the correct factual allegations. People v. Hardy, 35 N.Y.S.3d 466, 469 (2020). In the instant mater, the People failed to file a SSI with the corrected date of the alleged occurrence prior to filing their initial ADF, COC, COR.

For the aforementioned reasons, the information is facially insufficient and the Defendant's motion to dismiss is therefore granted, with a thirty (30) day stay of sealing.

This opinion constitutes the decision and Order of the Court.

DATED: March 31, 2023

New York, New York

_______________________________

Hon. Lumarie Maldonado-Cruz, J.C.C.

FOOTNOTES

1.    People v. Alejandro, 70 NY2d 133 (1979).

2.    See People v. Barber, 42 Misc 3d. 1225(A) (Crim. Ct. NY Co. 2014), People v. Machado, 182 Misc 2d 194, 197—98 (Crim. Ct. Bronx Co. 1999)

3.    Machado at 194.

Lumarie Maldonado-Cruz, J.