PEOPLE v. AGUILAR CONTRERAS (2020)

ORDERED that the judgment of conviction is affirmed.

After waiving prosecution by information, defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20), a violation, in full satisfaction of the accusatory instrument, which charged him with forcible touching (Penal Law § 130.52 [1]), sexual abuse in the third degree (Penal Law § 130.55), and harassment in the second degree (Penal Law § 240.26 [1]). On appeal, defendant challenges the facial sufficiency of all charges in the accusatory instrument, arguing that there was only a conclusory allegation identifying defendant as the perpetrator.

“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 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 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]). To be facially sufficient, a misdemeanor complaint must set forth “facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15 [3]; see 100.40 [4] [a] ), and provide “reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [4] [b]). “[T]he test for facial sufficiency ‘is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy’ ” (People v. Aragon, 28 NY3d 125, 128 [2016], quoting Dreyden, 15 NY3d at 103). “So long as the factual allegations of [a complaint] 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” (People v. Casey, 95 NY2d 354, 360 [2000]; see Konieczny, 2 NY3d at 575).

Here, the accusatory instrument, captioned “THE PEOPLE OF THE STATE OF NEW YORK V ISABEL AGUILAR CONTRER[AS],” executed and sworn to by a police officer, alleged that the police officer had been informed by the complainant that, on a specified date, at a specified time and place, “defendant” had grabbed the complainant's shoulders, pulled the complainant toward “defendant,” and “defendant” had kissed the complainant on the lips without the complainant's consent. Additionally, the accusatory instrument alleged that the previously described actions had caused the complainant to become alarmed and annoyed. Along with the accusatory instrument, the People served and filed a supporting deposition signed by the complainant, in which she attested, upon her personal knowledge, that all of the facts stated in the accusatory instrument to have been based upon information furnished by her were true.

Upon a review of the accusatory instrument, we find that it adequately provided notice of defendant's identity. Although the factual portion of the accusatory instrument did not specifically state defendant's name, the reference to “defendant” throughout the factual portion of the accusatory instrument clearly referred to this defendant, the only person listed in the caption of the complaint (see e.g. People ex rel. Lewis v. Graham, 57 AD3d 1508 [2008] [holding that the reference to “DEFENDANT” in the body of the indictment was sufficient to charge that person with the commission of the crimes.] ). Consequently, we find that defendant's challenge to the accusatory instrument lacks merit.

Accordingly, the judgment of conviction is affirmed.

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