The defendant, Jario Olivero, is charged with Failure to Re-Register (AC 10-603[e][1]). He has moved for an order (1) dismissing the accusatory instrument for lack of facial sufficiency pursuant to CPL 170.30(1)(a) and 170.35(1); (2) precluding the introduction of evidence of any statement of his and identification of him for lack of timely notice; (3) compelling a bill of particulars and discovery; (4) precluding the use at trial of the defendant's criminal convictions and bad acts; and (5) reserving for him the right to make further motions. The People oppose the motion to dismiss. They have served and filed a Voluntary Disclosure Form ("VDF") containing a bill of particulars and certain discovery information and oppose any further discover requests as beyond the scope of the discovery statutes. The People do not directly address the defendant's motion to preclude statements and identification evidence. However, they do state that they do not intend to introduce any such evidence in their direct case. The People request that the defendant's motion to preclude impeachment by use of his prior bad acts and convictions be referred to the trial court for decision. The People also move in their own right for reciprocal discovery.

The accusatory instrument is a complaint, which reads in relevant part:

Deponent [Police Detective Morris Weathers] states that he is currently assigned to the Gun Offender Monitoring Unit (GOMU) of the New York City Police Department, responsible for monitoring the defendant's compliance with the Gun Offender Registration Act's requirement, as delineated within the Administrative Code § 10-603(e)(1), which requires New York City residents who are registered gun offenders to re-register with GOMU, located at 120 East 119th Street, New [*2]York, NY, every six months after their initial registration date. Deponent has examined the defendant's signed New York State Gun Offender Registration form which indicates that the defendant was convicted of Criminal Possession of a Weapon in the fourth degree in violation of Penal Law Section 265.02(4) on April 2, 2008 and lives in New York City. Deponent further states that the defendant was personally made aware of his duty to re-register, based upon information and belief, the basis for which is that the defendant prepared and signed the New York State Gun Offender Registration form, which indicates, in substance, that, if the defendant is a New York City resident, he must verify his address and provide any other information that the NYPD requires by personally appearing at GOMU within 20 days of each six month anniversary of release, if he has been imprisoned, or the date of his sentence.

Deponent further states that a review of GOMU records reveals the following: that the defendant initially registered at GOMU on July 16, 2008; the defendant provided GOMU with a New York City address as his residence; and the defendant failed to re-register with GOMU within the six-month time period referenced above or at any time thereafter [up to and including August 26, 2009] to personally verify his registration information.

Deponent further states that as a New York City Police Officer currently assigned to GOMU, the deponent is a custodian of said records. Deponent further states that GOMU is a designated law enforcement agency of the New York State Gun Offender Registration Act within the five boroughs of New York City and as such is a local law enforcement agency having jurisdiction within the five boroughs of New York City which has access to and maintains files relating to regional registry of gun offenders as those terms are defined and used with the New York State Gun Offender Registration Act of the Administrative Code (Chapter Six, Title 10).

It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must comport with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10(1).

The defendant does not question the facial sufficiency of the accusatory instrument as a complaint, and rightly so. The court finds the complaint provides an accurate recitation of the provisions of AC 10-603(e)(1) and alleges "facts of an evidentiary character supporting or tending to support the charges." See CPL 100.15(3). The defendant only argues that the complaint has not been converted into an information because, he alleges, it contains hearsay assertions as to the content of documents, which have not been corroborated pursuant to CPL 100.40. There is merit to the defendant's contention.

The factual portion of this accusatory instrument is comprised almost completely of Det. Weathers' assertions that documents kept by the GOMU show that the defendant had been [*3]convicted of the gun charge on a specific date, registered with the GOMU, gave his residence as being in New York City and failed to re-register within the prescribed time limits. The People apparently have relied on the "business records" exception to the hearsay rule, which permits the trier of fact to consider the content of such records for the truth of the matter asserted if they are made and kept in the ordinary course of the business — even if the maker of those instruments does not testify in court. See CPLR §4518(a).^[FN1] The rationale for this provision is that "records systematically made for the conduct of a business . . . are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for the purposes of the conduct of the enterprise." People v. Rawlins, 10 NY3d 136, 150 (2008).

The business records exception of the hearsay rule does not eliminate the need for the documents themselves to be submitted to the Court and the defendant for inspection. This is so for cases at trial, see People v. Barnes, 177 AD2d 989 (4th Dept 1991), as well as in cases where the facial sufficiency of the accusatory instrument is challenged, see, e.g., People v. Tisdale, 18 Misc 3d 1125(A) (Crim Ct, Kings County 2008)(unreported); People v. Ross, 12 Misc 3d 755, 764 (Crim Ct, Kings County 2006). "This court has found no instance [in case law]," wrote the Ross court, "where a deponent indicates that he or she is the custodian of a business record, and asked a court to accept his or her statements regarding the nature of that document, without also presenting the business record itself for the court's review."

The obligation of the People to present certified copies of the documents at issue has been recognized in other contexts, such as when the People seek to establish that the defendant charged with failure to re-register as a sex offender had notice of his duty to do so and did not (see People v. Thomas Camacho, Docket No. 2003NY052434 [Crim Ct, NY County May 4, 2004][unpublished]; People v. Cobb, 2 Misc 3d 237, 248 [Crim Ct, Queens County 2003]; cf People v. Kevin King, NYLJ October 7, 2005, at 18, col 3 [Crim Ct, NY County 2005]); or when the People seek to prove that the driver's license of a defendant charged with Aggravated Unlicensed Operation in the Third Degree was suspended and he/she was notified of that suspension (see, e.g., People v. J.T., 13 Misc 3d 1212[A][Crim Ct, NY County 2006][unreported]; People v. Armfield, 189 Misc 2d 556 [Crim Ct, Richmond County 2001]). Certified copies of the underlying documents are also required to prove the content of an insurance company file (People v. Tisdale, 18 Misc 3d 1124[A]); the content of a Workers Compensation Board decision (People v. Previl, 21 Misc 3d 914,917 (Crim Ct, Kings County 2008); and the content of City Department of Buildings licensing records (People v. Al-Ladkani, 169 Misc 2d 720, 724 [Crim Ct, Kings County 1996]).

Thus, the Court holds that the instrument has not been converted into an information. However, because the defect is "readily curable," (People v. Casey, 95 NY2d 354,361 (2000), the defendant's motion for an order dismissing the accusatory instrument is hereby denied and the People may, within the time limits provided by the speedy trial statutes (CPL 30.20 and 30.30), serve and file the GOMU documents upon which the complaint relies.

The defendant's motion for an order compelling the People to provide him with a bill of particulars is mooted by the fact that the People have served and filed a Voluntary Disclosure Form, which contains the information sought by the defendant.

As to discovery sought by demand pursuant to CPL 240.20, the People shall comply with the demand as it applies to those items enumerated in CPL 240.20 within 15 days of the date of this order. As to those items sought by the defendant but not enumerated in CPL 240.20, the defendant's motion has failed to set forth with any degree of specificity that the demanded items constitute property which the People intend to introduce at trial. Also, the defendant has failed to show that such property is material to the preparation of a defense and that the defendant's request is reasonable. CPL 240.40. Therefore, this branch of the motion for discovery is denied.

The defendant's motion to reserve the right to make further motions is denied. However, upon good cause shown, the Court will permit the defendant to make additional motions.

The People's motion to compel limited reciprocal discovery pursuant to CPL 250.20 is granted.

This opinion shall constitute the decision and order of this court.

Dated:April 25, 2010

New York, New York

_______________________

Hon. Felicia A. Mennin, JCC