Defendant is charged with Overdriving, Torturing and Injuring Animals under AM Sec. 353, a Class A misdemeanor.

By motion dated November 24, 2010, Defendant seeks dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of Class A misdemeanors by that section.

The Court has reviewed Defendant's motion, and the People's Response dated January 21, 2011 and the documents attached thereto as exhibits.

Defendant's motion is granted. The Court finds that the People are charged with 102 days in this matter.

The top count of the Criminal Court Complaint herein is a Class A misdemeanor. Thus, there is no dispute that 90 days is the applicable time limit. See, People v. Lang, 5 Misc 2d 1021(a), 799 NYS2d 163 (Crim, Ct., Kings Cty 2004). [*2]

Defendant was arrested in the instant matter on June 16, 2010, and given a Desk Appearance Ticket. He was arraigned on July 22, 2010. The Defendant was released, and this matter was adjourned for Discovery by Stipulation to November 1, 2010. This marking, however, was an error.^[FN1]

A review of the Criminal Court Complaint shows that the deponent was informed by three separate persons as to facts stated in the complaint; two doctors and the defendant's own grandfather. CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 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. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish two things; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

Here, the Criminal Court complaint fails to assert non-hearsay, evidentiary facts. The deponent relies upon information provided to them by three different informants. To date, none of these individuals have provided any corroboration of the statements made in the Criminal Court Complaint.

It is irrelevant that the Court's marking was in error. The failure to convert the complaint is a jurisdictional defect, which cannot be waived by defendant's failure to raise the issue at arraignment. See, Alejandro, supra; People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007).

Thus, the time from July 22, 2010 to November 1, 2010 (102 days) is charged in its entirety to the People.Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is granted.

All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkFebruary 24, 2011 [*3]

_______________________________Hon. John H. Wilson, JCC