The issue in this case is the effect of a deponent — whose deposition attesting that he had read the Criminal Court Complaint, and that the matters set forth therein were true to his personal knowledge, thereby converting the Complaint to an Information — subsequently testifying at trial that he had never before seen the Complaint.

Defendant is charged with Attempted Petit Larceny (Penal Law § 155.25), and Attempted Criminal Possession of Stolen Property (Penal Law § 165.40), both class A misdemeanors. Defendant seeks: 1) dismissal of the counts pursuant to Criminal Procedure Law ("CPL") § 30.30(1)(b), for failure to provide Defendant a speedy trial; 2) an order granting a mistrial for failure to prosecute Defendant on a valid information pursuant to CPL §§ 100.10 and 170.65; and, 3) the right to make additional motions as necessary, pursuant to CPL § 244.20(3). For the reasons stated herein, Defendant's motions are DENIED, except to allow further motions pursuant to CPL § 244.20(3).

Defendant was arraigned on November 4, 2009, when he accepted an Adjournment in Contemplation of Dismissal ("ACD") if he completed the Stoplift Program. Defendant failed to complete the program, and his case proceeded. More that a year later, on November 29, 2010, Defendant moved to dismiss the charges pursuant to CPL § 30.30, and also argued that no supporting depositions had been filed with the Complaint.^[FN1]

On January 10, 2011, Judge Hong denied Defendant's motion, finding that only 70 days [*2]were chargeable to the People, and ruled that, regarding insufficiency, the motion was untimely, the alleged lack of depositions was a defect in form not substance, and that, in any case, the depositions submitted validly converted the Complaint. People v. Antonovsky, 2009KN080621, Decision and Order (Kings Crim. Ct. January 10, 2011).

On March 3, 2011, Defendant's trial commenced, and the People called the Complainant, Kevin Cebula, to testify. On cross examination, the following colloquy took place between Cebula and defense counsel Brian Slater:

Q. (Slater) Thanks. After this [incident], did you have to fill out any paperwork at Best Buy?

A. (Cebula) I think I remember — I say think, it's going back two and a half years. I think I remember filling out the supporting deposition, the paperwork that the police officers ask for.

A. Yes, sir.

A. Not that I know.

Q. Nothing at Best Buy, nothing internally?

A. No. Just the supporting deposition.

Q. You filled that out at the time that the police officer came, right, on September 5th [2009]?

A. Yes.

Q. Did there come a time months later where you were asked to fill anything else out?

A. I can't remember. No, sir.

Q. Was there [sic] a few months later where you were asked to look at the what's called an accusatory instrument?

A. I can't remember.

Q. Would it help if I showed you what's an accusatory instrument?

A. Yes.

Q. Possibly to refresh the witness' memory. Did you ever see this document?

A. No, sir. I never saw this document.

(Tr. 27:4-28:8.)^[FN2]

The People had no re-direct examination,(Tr. 44:7-10),and rested after the completion of Defendant's cross examination. Defendant moved for a mistrial, and, after the People contended that the motion should be deemed to be pursuant to CPL § 30.30, as to which the People must be afforded an opportunity to respond in writing, a motion schedule was set. The trial was adjourned to March 25, 2011, for Decision. Defendant filed the instant motion on March 11, 2011, and the People filed their opposition on March 18, 2011.

Defendant argues that the misdemeanor Complaint was never properly converted because the Complainant, Mr. Cebula, testified at trial that he had never read the Complaint. Defendant contends that the Complainant's failure to have read the Complaint means that the supporting deposition, in which he swore to have read and furnished the facts in the Complaint, is an unknown latent defect in the Information. Thus, according to Defendant, the People have not properly converted the Complaint because it lacks a valid supporting deposition, and have prosecuted him on an invalid accusatory instrument — in effect, on a Complaint rather than an [*3]Information — and further alleges that he never waived his right to be prosecuted by Information. (Def.'s Mem. 8.) Defendant also argues that, as a result of failing to convert the Complaint, the People have exceeded the time permitted to bring Defendant to trial. (Id. 3-7.)

The People counter that the alleged latent deficiency in the Complaint created by the Complainant's failure to read the Complaint is an error in form that cannot be grounds for a mistrial because the trial has begun, which amounts to an implicit waiver of the right to be prosecuted by Information. (People's Mem. 10-11.) Secondly, they argue that, based on the Complainant's trial testimony, the Court should not find that the Complainant did not read the Complaint. They contend that, despite his testimony that he had never seen the Complaint, the Complainant's testimony actually demonstrates that he was unclear about what he read or received in this case, and, furthermore, his testimony at trial was entirely consistent with the facts in the Complaint. (Id. 11-13.) Finally, the People argue that the motion is untimely because contentions that a complaint contains hearsay allegations are waived absent a challenge before trial. (Id. 13.)

While a facial insufficiency motion is usually waived if not presented prior to trial, the type of latent defect alleged, that the Complainant did not read the Complaint, is one that falls squarely into the category of grounds for a motion that cannot be discovered through due diligence of counsel. It is a matter of simple logic that Defendant had no ability prior to trial to go behind the verification or to otherwise determine whether Mr. Cebula actually read the Complaint, which he stated, in his deposition under penalty of perjury, to have read.

The Court further finds that Mr. Cebula clearly admitted that he did not read the Complaint before signing his verification or at any other time before trial. Thus, while the People claim that the testimony was ambiguous, Cebula unequivocally stated that he had never before seen the Complaint, which was then marked as Defense Exhibit A for Identification, and which the Court confirms was, in fact, the Complaint in this case. Moreover, the People had ample opportunity to clear up any ambiguity in Cebula's testimony, but offered no re-direct examination.^[FN3]

An accusatory instrument is facially sufficient if it contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged. CPL §100.15; CPL § 100.40(1)(b). See People v. Dumas, 68 NY2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense. CPL § 100.40(1)(c). People v. Alejandro, 70 NY2d 133, 135, 527 N.Y.S.2d 927, 511 N.E.2d 71 (1987). An information is usually examined for hearsay allegations during the pretrial stage where a defendant's fundamental rights may be affected, and is assessed by a facial reading of the accusatory instrument. People v. Casey, 95 NY2d 354, 361, 740 N.E.2d 233, 236, 717 N.Y.S.2d 88, 91(2000) (citing Matter of Edward B., 80 NY2d 458, 464, 606 N.E.2d 1353, 1356, 591 N.Y.S.2d 962, 965 (1992)); id., 95 NY2d at 366, 740 N.E.2d at 240, 717 N.Y.S.2d at 95. (Omission of an element of a crime is a non-waiveable, jurisdictional defect.).

In Edward B., the Court of Appeals, comparing CPL § 100.40(1)(c) with Family Court Act § 311.2(3), stated that

once the pretrial stages of the proceeding have passed and the fact-finding stage has begun, there is no longer a pressing need for an accusatory instrument that complies with Family Court Act § 311.2(3)'s requirements, since the accused has already been brought before the court and the witnesses are available to describe the case against the accused, in person and under oath.

Matter of Edward B., 80 NY2d 458, 464, 606 N.E.2d 1353, 1356, 591 N.Y.S.2d 962, 965 (1992). The latent defect in Edward B. was caused when, at the fact-finding hearing, the juvenile complainant stated that, though she had signed the supporting deposition, she had not read it. The court found that "latent deficiencies in the accusatory instrument that are revealed during the trial or hearing do not provide a ground for mandatory dismissal." Id. 80 NY2d at 465, 606 N.E.2d at 1356, 591 N.Y.S.2d at 965.

In Casey, the Court of Appeals applied this rationale to CPL § 100.40(1)(c) relying on Edward B. to clarify whether the presence of hearsay allegations in a criminal complaint rendered the conversion ineffective. Casey, 95 NY2d at 361, 740 N.E.2d at 236, 717 N.Y.S.2d at 91(citing Edward B., and noting that Family Court Act § 311.2(3) is "the virtually identical juvenile delinquency counter part to" CPL § 100.40(1)(c)). Casey held that hearsay defects in a criminal complaint are procedural, waivable, non-jurisdictional, and, thus, do not warrant mandatory dismissal. Id. 95 NY2d at 362-3, 740 N.E.2d at 237-8, 717 N.Y.S.2d at 92-1. Thus, while we are bound by Edward B. and Casey, they both appear to leave open the power of the Court to dismiss this case in its discretion.

Defendant relies solely on People v. Daryl K., N.Y.L.J 7/7/93, p. 24, col. 6 (App. Term 2nd Dept.), lv. denied, sub nom., People v. Khan, 82 NY2d 721, 602 N.Y.S.2d 818, 622 N.E.2d 319 (1993), for support of his motion. In that case, after the victim testified that he had never read the complaint, and despite signing an affidavit to the contrary, the court ordered a post-trial hearing to "establish the facts surrounding the signing of the corroborating affidavit," and found that the victim never read the complaint. Id. Significantly, the decision contains no findings of fact about the victim's knowledge of the allegations in the complaint. However, the court granted [*5]the motion and dismissed the action, in part, because the misdemeanor complaint had not been converted and, as a result, the court lacked jurisdiction. Whether the court also found the witness's hearing testimony inconsistent with the complaint cannot be ascertained from the opinion. Id.

In contrast, in People v. Flores, the court denied Defendant's motion for a mistrial because her testimony about the facts of the incident was consistent with the allegations in the complaint, despite the complainant testifying that she had not read the accusatory instrument because she did not read English. 189 Misc 2d 665, 668, 735 N.Y.S.2d 923, 925 (Queens Crim. Ct. 2001); see also Edward B., 80 NY2d at 464, 606 N.E.2d at 1356, 591 N.Y.S.2d at 965. Here, the fact that Mr. Cebula did not read the Complaint does not undermine the remainder of his testimony at trial, nor does it affect the validity of the Complaint. The purpose of a supporting deposition is to remove the presence of hearsay. In-person testimony, however, has precisely the same corroborative effect as a deposition: testimony removes the presence of hearsay, effectively curing a complainant's failure to have read the complaint.

The relevant portion of the Complaint states that:

On or about September 5, 2009, at approximately 03:15 pm at 8923 Bay Parkway County of Kings, State of New York . . . . The Deponent is informed by the supporting deposition of Kevin Cebula that . . . Informant observed the Defendant take various property, including a router and attempt to return said property for a refund.

Cebula's testimony on direct was a detailed recitation of his observations, which were also consistent — if not identical — to the allegations in the Complaint. Cebula, a security guard at Best Buy, was working at the Best Buy store on Bay Parkway, Brooklyn, on September 5, 2009, at 3:15 pm. (Tr. 3:10-13, 4:14-25.) Cebula observed Defendant enter the store, (Tr. 4:24-25), with a router box, (Tr. 7:13-25). Cebula marked the box with a sticker, which indicted that the item was designated as an item to be exchanged or returned, but noted that the box appeared to be empty. (Tr. 7:9-12.) He followed Defendant and observed him take a router from the store shelf and place it into the empty box that Defendant had carried into the store. (Tr. 8:4-21.) He observed Defendant manipulate several other identical router boxes on the store shelf, (Tr. 9:1-12), before observing him exchange the store router (now in the box that Defendant entered with, the "stickered" box) for a sum of money. (Tr. 9:16-19, 10:2-8.) After exchanging the router, Cebula observed Defendant attempt to exit the store before Cebula stopped him (Tr. 3:10-13, 4:14-25.)

These observations were elicited by the People during their direct examination. As noted above, defense counsel, the People, and the Court did not become aware of Cebula's apparent failure to have read the Complaint until defense counsel's cross examination. Thus, Cebula's testimony about Defendant's conduct was not influenced by the exchange during cross examination. The timing of these events lends credibility to notion that Cebula's testimony is consistent with the contents of the Complaint because even if he had never read the Complaint, he nevertheless gave a factually detailed description of Defendant's conduct that demonstrated, at a minimum, reasonable cause to believe that the defendant committed the offense charged. See CPL §§ 100.15, 100.40(1)(b); People v. Dumas, supra.

Daryl K. is distinguishable because Cebula's testimony was consistent with the Complaint, and, in accordance with Edward B. and Flores, trial testimony consistent with the [*6]allegations in the Complaint effectively trumps the presence of hearsay allegations in the complaint. See Edward B., 80 NY2d at 464, 606 N.E.2d at 1356, 591 N.Y.S.2d at 965; Flores, 189 Misc 2d at 668, 735 N.Y.S.2d at 925. Furthermore, in Daryl K. the witness's knowledge of the allegations of the petition were not explored. Also, while Daryl K.'s holding that hearsay in a complaint divests a court of jurisdiction, has not been explicitly overruled, Casey's holding, that the presence of hearsay allegations is not a jurisdictional defect, effectively undermines the reasoning and result in Daryl K. While the Complainant's admission means that the Complaint technically, albeit unknown to both the prosecution and defense, contained hearsay, his testimony during the People's direct examination effectively corroborated the contents of the Complaint.

On January 10, 2011, Judge Hong denied Defendant's first 30.30 motion, finding that the applicable speedy trial period is 90 days from the filing of the misdemeanor complaint, and that only 70 days were chargeable to the People. Regarding the instant motion, because the Complaint has been properly converted, the People have proceeded to trial with a proper instrument. Thus, no additional time before January 10, 2011, is chargeable to the People.

On February 7, 2011, the People were not ready, and requested 2 days. The case was adjourned to February 28, 2011, for Hearings and Trial. The People are charged with the time they requested, thus 2 days. People v. Anderson, 252 AD2d 399, 676 N.Y.S.2d 549 (1st Dept. 1998), lv. denied, 92 NY2d 1027 (1998) (the People are charged with the time of the post-readiness adjournment they requested).

On February 28, 2011, the People announced ready for trial, and the case was adjourned to March 3, 2011, for Hearings and Trial. This time is excluded. On March 3, 2011, the People announced ready, and the trial began.

The People are charged 2 days for the period between February 7, 2011, and March 3, 2011. Thus, in addition to the 70 days found to be chargeable by Judge Hong, the People are charged for a total of 72 days. Therefore, the People have not exceeded their Speedy Trial time limit. Defendant's motion to dismiss the Complaint pursuant to CPL § 30.30 is DENIED.

Both Edward B. and Casey hold that a dismissal is not mandated for a complainant's failure to read the complaint, notwithstanding a verification signed by the complainant attesting that he had read it. This appears, however, to leave open the possibility that the Court, in its discretion, could dismiss the complaint or declare a mistrial. Here, Defendant has shown no basis to cause this Court to dismiss or grant a mistrial. This case is proceeding as a bench trial, and the Court does not find any legally cognizable prejudice to have accrued to Defendant as a result of either Mr. Cebula's testimony or the delay caused by this motion. Rather, the testimony of Mr. Cebula appears to make out a prima facie case of Attempted Petit Larceny and Attempted Criminal Possession of Stolen Property, and Defendant has offered no additional reasons, beyond the failure of the Complainant to have read the Complaint before stating under penalty of perjury that he had read it, to warrant dismissal.^[FN4] [*7]

For the reasons stated above, Defendant's motions for a mistrial and for dismissal pursuant to CPL § 30.30 are DENIED.

Defendant's motion for the right to make additional motions as necessary pursuant to CPL § 244.20(3) is GRANTED.

This constitutes the decision and order of this Court.

Dated:March 25, 2011

Brooklyn, New York

______________________________

MICHAEL GERSTEIN, J.C.C.