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District Court, Nassau County, New York.

The PEOPLE of the State of New York, Plaintiff v. Antonio DELMONACO, Defendant.

Decided: June 11, 2007

Ralph P. Healey, A.D.A. of counsel to Kathleen M. Rice, District Attorney, Hempstead, Attorneys for the Plantiff. David Gevanter, Esq., Hicksville, Attorney for the Defendant.

The defendant, Antonio Delmonaco, moves this Court for an order dismissing the information upon the ground that the Court lacks subject matter jurisdiction over the case and that the same should be dismissed in the furtherance of justice.   The People oppose the motion, and move this Court for dismissal of the charge that the defendant violated Section 229-1(A) of the Code of the Town of Oyster Bay.

The defendant is charged with violating Section 229-1(A) and Section 82-3(B), of the Code of the Town of Oyster Bay. The People have dismissed the “Trespass” charge pursuant to Section 229-1(A).   The remaining charge of a violation of Section 82-3(B), “Possession of Open Alcoholic Beverage”, allegedly occurred at Central Boulevard School, in Bethpage, on February 2, 2007 at approximately 7:40 pm.

 The defendant alleges that per CPL § 30.30, CPL § 150.50 subdivision 5(b), CPL § 170.30, and CPL § 170.40, that the simplified information should be dismissed.   Defendant's counsel maintains that “only a desk appearance ticket (D.A.T.) has been filed with this Court.   It appears that no simplified information, no information or any other accusatory instrument has been filed with this Court.”

Defense counsel cites People v. Consolidated Edison Co., 161 Misc.2d 907, 615 N.Y.S.2d 978, wherein appearance tickets were issued by Department of Transportation inspectors and on the return dates, the accusatory instruments had not yet been filed.   The Consolidated Edison Co. court found that the failure to file an accusatory instrument on or before the return date, resulted in the Court failing to acquire subject matter jurisdiction over the defendant.   The case at bar is distinguishable from the Consolidated Edison Co. Court, because although a D.A.T. ticket had been issued to Mr. Delmonaco, the People in fact filed the D.A.T. with the Court, prior to arraignment.

The People allege:

[T]hat prior to arraignment, PEOPLE filed with this Court, accusatory instruments containing factual allegations made under the penalties of Section 245.10 of the Penal Law, specifying the time, date, location and manner in which defendant committed the above-stated offenses.

In addition, the People state that on April 9, 2007, the defendant appeared before this Court and was arraigned.   The defendant entered a plea of not guilty to both charges.   The issue now becomes, whether the filing of the D.A.T. qualifies as an accusatory instrument pursuant to CPL § 1.20(17), CPL § 100.05 and CPL § 100.15. In order to determine this, the Court must analyze the sufficiency of the D.A.T. filed by the police.

 CPL § 100.15 provides that every accusatory instrument must contain two separate parts: 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument.   The facts set forth must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument (People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686;  People v. Strafer, 10 Misc.3d 1072(A), 2006 WL 118366).  CPL § 100.40 provides that a misdemeanor information is facially sufficient if the non-hearsay facts stated in the information, together with any supporting depositions, establish:  1) each and every element of the offense charged, and 2) the defendant's commission of said crime.   When both these requirements are met, the information states a prima facie case and is sufficient (People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71).

 On a motion to dismiss for facial insufficiency, the Court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument, are facially sufficient.   The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079).   In assessing the facial sufficiency of an accusatory instrument, the Court must view the facts in the light most favorable to the People (People v. Mellish, 4 Misc.3d 1013(A), 2004 WL 1797568;  People v. Gibble, 2 Misc.3d 510, 773 N.Y.S.2d 499).   The allegations only need make out a prima facie case and need not establish the defendant's guilt beyond a reasonable doubt (People v. Henderson, 92 N.Y.2d 677, 685 N.Y.S.2d 409, 708 N.E.2d 165).

Here, the D.A.T. states the offense charged and contains a factual portion supporting the offense charged in accordance with CPL § 100.15. The factual portion of the appearance ticket alleges:

I observed the defendant at the stated place, date and time to be in possession of a 40 oz.   Bottle of Budweiser beer with intent to consume same.

Accordingly, despite being titled “Appearance Ticket”, the D.A.T. sufficiently complies with the requisite requirement of an accusatory instrument pursuant to CPL § 100.15. The mere denomination as either a court information, appearance ticket, or D.A.T. does not conclusively establish the sufficiency of the document, rather the contents establish the accusatory instrument's sufficiency (see generally, People v. Meachem, 2005 N.Y. Slip Op. 52269[U], 2005 WL 3783886).

The defendant's remaining arguments are denied without merit.   Accordingly, the defendant's motion to dismiss with regard to the charge of violating Section 82-3 of the Code of the Town of Oyster Bay is denied and the charge of violating Section 229-1 of the Code of the Town of Oyster Bay is dismissed upon the request of the People.

So Ordered.