PEOPLE v. JACKSON (2018)

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an information with menacing in the second degree (Penal Law § 120.14 [1] ) and possession of an air pistol (Administrative Code of the City of New York § 10–131 [b] ). Defendant pleaded guilty to the charge of menacing in the second degree. It is alleged in the information that defendant displayed a “black firearm” and stated to the complainant that he was “going to f**k [him] up,” which caused the complainant to fear for his physical safety. On appeal, defendant argues that the count of the accusatory instrument charging menacing in the second degree is facially insufficient and must be dismissed.

At the outset, we note that defendant's contention concerning the accusatory instrument's facial sufficiency is jurisdictional (see People v. Alejandro, 70 NY2d 133 [1987] ). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 573 [2004] ) and must be reviewed in spite of his failure to raise it in the Criminal Court (see Alejandro, 70 NY2d 133). Furthermore, since defendant did not waive prosecution by information, the facial sufficiency of the accusatory instrument must be evaluated under the standards which govern the sufficiency of an information as set forth in CPL 100.40 (1) (see People v. Hatton, 26 NY3d 364, 368 [2015]; People v. Kalin, 12 NY3d 225, 228 [2009]; People v. Connor, 63 NY2d 11 [1984] [a waiver of the mandated reading of the rights does not by itself constitute a waiver of the procedural right to be tried on an information] ). Where the information fails to meet these requirements, it is jurisdictionally defective (see Hatton, 26 NY3d at 368). We note that “a purported hearsay defect in an accusatory instrument is nonjurisdictional and, thus, forfeited by a guilty plea” (People v. Keizer, 100 NY2d 114, 121 [2003] ).

Menacing in the second degree occurs when an individual “intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (Penal Law § 120.14 [1]; see People v. Bartkow, 96 NY2d 770, 772 [2001]; People v. Cruci, 14 Misc 3d 128[A], 2006 NY Slip Op. 52495[U], *2 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2006] ). Giving the accusatory instrument “a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000] ), we are satisfied that, contrary to defendant's contention, the information was facially sufficient to allege menacing in the second degree (see People v. Wilson, 48 Misc 3d 129[A], 2015 NY Slip Op. 50976[U] [App. Term, 2d Dept., 2d, 11th and 13th Jud. Dists. 2015] ).

Accordingly, the judgment of conviction is affirmed.

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