PEOPLE v. BANASZEK (2021)

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with harassment in the second degree (Penal Law § 240.26 [2]), public lewdness (Penal Law § 245.00 [a]) and exposure of a person (Penal Law § 245.01) in an accusatory instrument which alleged that the complaining witness had observed defendant expose his penis to her in a public place and then follow her along the public street while continuing to be exposed, which caused her to become alarmed and annoyed. After waiving prosecution by information, defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20) in satisfaction of the accusatory instrument.

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977]; see also People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). Here, since defendant expressly waived the right to be prosecuted by information, the relevant counts of the accusatory instrument must be evaluated under the standards that govern a misdemeanor complaint (see Dumay, 23 NY3d at 524; see also CPL 100.15, 100.40 [4]; People v Dumas, 68 NY2d 729, 731 [1986]). CPL 100.40 (4) provides that a misdemeanor complaint, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in CPL 100.15 and when “[t]he allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.” Furthermore, CPL 70.10 (2) states that “ ‘[r]easonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it,” and which, in the case of a misdemeanor complaint, “may include or consist of hearsay.”

Contrary to defendant's sole contention on appeal, that there were only conclusory facts alleged in the accusatory instrument identifying him as the perpetrator, defendant's identification was based upon the complainant's personal observation of him (see People v Thomas, 47 Misc 3d 132[A], 2015 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v Vonancken, 27 Misc 3d 132[A], 2010 NY Slip Op 50695[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v Bridgelal, 9 Misc 3d 127[A], 2005 NY Slip Op 51473[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). Any further challenge to the identification of defendant was a matter to be raised as an evidentiary defense and does not affect the facial sufficiency of the accusatory instrument (see People v Drelich, 32 NY3d 1032, 1033 [2018]; People v Casey, 95 NY2d 354, 360 [2000]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.