In the underlying action, the Court previously denied the defense's application to release the Defendant pursuant to CPL 170.70. The Court now sets forth in detail its reasoning for denying the Defendant's application.

On October 12, 2009, the Defendant was arraigned on a misdemeanor complaint that charged the Defendant with violating Penal Law 215.50 (3) - Criminal contempt in the second degree. The presiding court set bail and adjourned the matter to October 16, 2009 (the CPL 170.70 date).

On October 16, 2009, the People served and filed a "superseding information" and a supporting deposition attesting to the facts as stated in the "superseding information". At that time, the People failed to convert the charge of Penal Law 215.50 (3) - Criminal contempt in the second degree (Class A Misdemeanor) as originally charged in the misdemeanor complaint. The defense made an application to release the Defendant from police custody pursuant to CPL [*2]170.70, on the grounds that the People had failed to properly replace the misdemeanor complaint with a misdemeanor information as required by the statute.

§ 170.70. Release of defendant upon failure to replace misdemeanor complaint by information

Upon application of a defendant against whom a misdemeanor complaint is pending in a local criminal court, and who, either at the time of his arraignment thereon or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than five days, not including Sunday, without any information having been filed in replacement of such misdemeanor complaint, the criminal court must release the defendant on his own recognizance unless:

The defense argued that the People's "superseding information", which was served and filed on the CPL 170.70 date, was improper pursuant to CPL 100.50 (3) & 170.65 (2) because it did not convert the charge of Criminal contempt in the second degree that was originally charged in the misdemeanor complaint.^[FN1] The Defendant further argued that because the People's "superseding information" failed to convert said charge and was not fully converted on all the charges, the People's "superseding information" was based in part on hearsay and, therefore, could not replace the original misdemeanor complaint for the purposes of CPL 170.70. The defense argued that because the "superseding information" was based in part on hearsay, it was just a misdemeanor complaint and a misdemeanor complaint cannot be replaced by another misdemeanor complaint in the same action.

The issues before this Court are threefold: (1) whether the People were required to convert the charge made in an initial misdemeanor complaint in their multicount "superseding information"; (2) whether the People's multicount "superseding information" was sufficient as an information when all the charges were not supported by nonhearsay factual allegations; and (3) whether the People can "replace"their initial misdemeanor complaint with a multicount "superseding information", for the purposes of CPL 170.70, where the People's multicount "superseding information" did not convert the charge made in the initial misdemeanor complaint.

Pursuant to CPL 100.50 (3) & 170.65 (2), the People are not required to convert the charge made in an initial misdemeanor complaint in their multicount "superseding information"

So long as the People's "superseding information" was sufficient as to any of the additional charges, and at least one of the additional charges stemmed from the same conduct that formed the basis of the initial complaint and the additional charges conformed to the rules of joinder, the People were not required to charge or convert the same charge made in their misdemeanor complaint. [*3]

CPL 100.50 (3) & 170.65 (2) read in relevant part as follows:

§ 100.50. Superseding informations and prosecutor's informations

3. A misdemeanor complaint must or may be replaced and superseded by an informationpursuant to the provisions of section 170.65.

§ 170.65. Replacement of misdemeanor complaint by information and waiver thereof

2. An information which replaces a misdemeanor complaint need not charge the same offenseor offenses, but at least one count thereof must charge the commission by the defendant of anoffense based upon conduct which was the subject of the misdemeanor complaint. Inaddition, the information may, subject to the rules of joinder, charge any other offense whichthe factual allegations thereof or of any supporting depositions accompanying it are legallysufficient to support, even though such offense is not based upon conduct which was thesubject of the misdemeanor complaint.

Contrary to the Defendant's argument regarding the People's "superseding information", neither CPL 100.50 nor 170.65 requires that an information filed to replace a misdemeanor complaint must convert any of the charges included in the original misdemeanor complaint. CPL 170.65 does not require that an information, filed to replace a misdemeanor complaint, include the same charges in the misdemeanor complaint. Pursuant to CPL 100.50 (3) and 170.65 (2), the People can file an information with additional charges to replace a criminal complaint where the replacing information includes charges "based on conduct which was the subject of the original charge [made in the complaint]" (People v. Thomas, 4 Misc 3d 57 [App Term, 2nd Dept 2004] affd 4 NY3d 143, 147 [2005]; People v. Geraldino,18 Misc 3d 461 [Crim Ct, Kings County 2007]; People v. Johnson, 2003 NY Slip Op 51206[U] [Crim Ct, New York County 2003]; People v. Fisher, 161 Misc 2d 25 [Crim Ct, New York County 1994]; People v. Morel, 157 Misc 2d 94 [Crim Ct, Kings County1993]; People v. Gore, 143 Misc 2d 106, 108 [Crim Ct, Kings County 1989]). As the People were not required by CPL 100.50 and 170.65 to include any of the same charges from the original misdemeanor complaint in their "superseding information", it is equally clear that the People were also not required to convert any of the charges as filed in the initial misdemeanor complaint in their "superseding information".

Specifically, CPL 170.65 (2) allows the prosecution to add new charges and new facts subject to two constraints. First, the superseding information must charge at least one offense based on facts pleaded in the complaint. Second, the additional charges must be in conformity with the rules of joinder. If the prosecution satisfies these two requirements, then it is free to add new charges supported by new factual material (See People v. Geraldino,18 Misc 3d 461 [Crim Ct, Kings County 2007] citing People v. Morel, 157 Misc 2d 94 [Crim Ct, Kings County 1993]; People v. Johnson, 2003 NY Slip Op 51206[U] [Crim Ct, New York County 2003]). Therefore, the pertinent inquiry in the instant matter is not whether the People converted any of their original charges (as stated in the misdemeanor complaint) in their "superseding information", but whether: (1) at least one of the charges in their "superseding information" was based on the conduct that was the subject of the misdemeanor complaint, and (2) all of the additional charges complied with the rules of joinder. [*4]

As such, the fact that the People's "superseding information" did not convert the charge of Criminal contempt in the second degree, as charged in the People's misdemeanor complaint did not, by itself, make the "superseding information" improper pursuant to CPL 100.50 and 170.65.

The People's multicount "superseding information" is sufficient as an information for each separate charge that is sufficiently supported by nonhearsay factual allegations.

It is well settled that "[e]ach count of an accusatory instrument is deemed as a matter of law to be a separate and distinct accusatory instrument" (People ex rel. Ortiz v. Commissioner of NY City Dept of Correction, 253 AD2d 688 [1st Dept 1998] affd 93 NY2d 959 [1999]; see also People v. Brooks, 190 Misc 2d 247 [App Term 1st Dept 2001]; People v. Popat, 15 Misc 3d 1136A [Crim Ct, Kings County 2007]; People v. Taveras, 17 Misc 3d 1119A [Crim Ct, New York County 2007]). Further, "a defect in a count does not necessarily require dismissal of all counts of a multicount accusatory instrument."(People v. Minor, 144 Misc 2d 846, 848 [App. Term 2nd Dept 1989]). As such, a multicount "superseding information" is not deemed to be insufficient in its entirety if some of the charges are based on hearsay and others are supported by nonhearsay factual allegations (See People v. Brooks, 190 Misc 2d 247 [App Term 1st Dept 2001]; People v. Gray, 7 Misc 3d 127A [App Term 2nd Dept 2004] lv denied 4 NY3d 799 [2005] and People v Castro, 2001 NY Slip Op 50084[U] [App Term 1st Dept 2001]; see also People v Gonzalez, 168 Misc 2d 136 [App Term1st Dept 1996]; People v. Miraglio, 17 Misc 3d 165 [Crim. Ct., Kings County 2007]; People v Ishmell, 13 Misc 3d 1236A [Crim Ct, Kings County 2006]; People v Shadrin, 2002 NY Slip Op. 50468[U] [Crim Ct, Kings County 2002]).

Although, the People's multicount "superseding information" did not convert the two charges of Criminal contempt in the second degree, the "superseding information" also included the additional charges of Assault in the third degree, Attempted assault in the third degree, Menacing in the third degree, Criminal contempt in the second degree, Harassment in the second degree, Endangering the welfare of a child, Menacing in the second degree, Menacing in the third degree and Reckless endangerment in the second degree, which are each treated as a separate and distinct accusatory instrument. It is clear from the caselaw that the Defendant is incorrect in arguing that the People's multicount "superseding information" is insufficient or otherwise improper in its entirety based solely upon the fact that the two charges of Criminal contempt in the second degree are not supported by nonhearsay factual allegations.

The People's Information also Satisfies the Purpose of CPL 170.70

The final issue that this Court must address is whether or not the People's multicount "superseding information" "replaced" the misdemeanor complaint for the purposes of CPL 170.70, where the "superseding information" did not include and/or convert the charge in the original complaint and included several charges that were not supported by nonhearsay factual allegations.

Upon review of the CPL 170.70 and the caselaw relevant to this statute, the Court finds that the People's "superseding information" met all the requirements and satisfied all the [*5]purposes of CPL 170.70. In People ex rel. Ortiz v. Commissioner, New York City Dept of Correction, (93 NY2d 959, 960 [NY 1999]) the Court of Appeals found that a Defendant should not be released pursuant to CPL 170.70, even where the accusatory instruments included charges that were not supported by nonhearsay factual allegations. The Court of Appeals affirmed the lower court's determination that although the People failed to corroborate each and every charge in the accusatory instruments within five days after the defendant's confinement, the defendant was not entitled to release pursuant to CPL 170.70 because "at least one count of each complaint was adequately supported". The Court of Appeals stated that CPL 170.70 was "designed to assure that defendants are not held in custody for more than a brief period on the basis of hearsay allegations," and further that each of the accusatory instruments filed in the criminal action satisfied the requirements of an information and, from inception, could have been the basis for prosecution (Id. at 960 citing Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A at 116, CPL 170.70, 100.15 & 100.40 (1)).

There is nothing in the language of CPL 170.70 that specifically requires that an information "filed in replacement" of a misdemeanor complaint covert any of the charges made in the original complaint. Further, CPL 170.70, uses the same "replacement" language that is utilized in CPL 170.65, which, as previously discussed, does not require that the People include in their "replacement" information the same charges made in an initial misdemeanor complaint.

Although the People's "superseding information" did not include nonhearsay proof as to the charges of Criminal contempt in the second degree, it did include nonhearsay proof as to the other additional charges, each of which could have been the basis for a criminal action (See People ex rel. Ortiz v. Commissioner, New York City Dept of Correction, 93 NY2d 959, 960 [NY 1999] citingCPL 100.15, 100.40 [1]). As such, there is no basis for the Court to determine that the Defendant is currently being held in custody on the basis of hearsay.

For the reasons so stated, this Court finds that the People's superseding misdemeanor information, met all the requirements of CPL 100.50 & 170.65 and adequately replaced the misdemeanor complaint to satisfy the purposes of 170.70.

Accordingly, CPL 170.70 does not require that the Defendant be released upon his own recognizance.

The foregoing constitutes the Order and Decision of the Court.

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DateHON. Robert D. Kalish

Judge, Criminal Court