The People of the State of New York, Respondent, v. Jerry William, Appellant. (2025)

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20) in full satisfaction of an accusatory instrument which charged him with petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and which, along with two supporting depositions, alleged that a security guard had observed defendant, who was in a supermarket, place 45 items of food into a shopping cart. On appeal, defendant challenges the facial sufficiency 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 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 People v Thiam, 34 NY3d 1040 [2019]; Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see Konieczny, 2 NY3d at 575). Where, as here, all of the counts charged in the accusatory instrument are of higher grade than the uncharged violation to which defendant pleaded guilty, for defendant to successfully challenge the facial sufficiency of the instrument, both counts charged therein would have to be found facially insufficient (see Thiam, 34 NY3d 1040; People v Pierre, 70 Misc 3d 69, 71 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; People v Perez, 64 Misc 3d 84, 91 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Mason, 62 Misc 3d 75, 77-78 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

We find, as defendant contends and the People concede, that the accusatory instrument, together with the supporting depositions, failed to allege that defendant had exercised dominion and control over the food items in a manner wholly inconsistent with the supermarket owner's continued rights, in that it failed to allege that defendant had walked past or tried to walk past the exit of the supermarket or a final point of sale with the items that were in his shopping cart (see People v Ramirez, 69 Misc 3d 129[A], 2020 NY Slip Op 51153[U] [App Term, 1st Dept 2020]; People v Brown, 55 Misc 3d 133[A], 2017 NY Slip Op 50445[U] [App Term, 1st Dept 2017]; cf. People v Cosme, 65 Misc 3d 127[A], 2019 NY Slip Op 51501[U] [App Term, 1st Dept 2019]). Thus, there was no allegation that he had stolen property or was in possession of stolen property. Consequently, under these particular circumstances, we need not determine whether the accusatory instrument constitutes an information or a misdemeanor complaint since, under either standard, the accusatory instrument was facially insufficient (compare CPL 100.40 [1], with CPL 100.40 [4]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

BUGGS and OTTLEY, JJ., concur.

MUNDY, J.P., taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: January 17, 2025