Defendant, charged with criminal contempt in the second degree and two VTL offenses, moves to dismiss, arguing that the superseding information is defective because it contains hearsay. The Court agrees. Because the purported superseding information contains hearsay and is not, in fact, an information, it is DISMISSED. The original information is RESTORED. The Court also GRANTS a Dunaway/Huntley hearing.

According to the superseding accusatory instrument, on February 28, 2015, a police officer observed the defendant driving with a suspended license. Defendant was in the car with a woman, whom the officer later learned to be "R.G." At that time, defendant was subject to a temporary order of protection that required him to stay away from R.G.

The underlying order of protection was entered in New York County Criminal Court on December 14, 2014, and bore an expiration date of June 14, 2015. The order directed the defendant, inter alia, to stay away from R.G. It also indicated that a copy of the order was served on the defendant personally in court, and that he was advised of its contents.

On March 17, 2015, the People filed what purported to be a superceding information charging defendant with the same two VTL counts and one count of criminal contempt in the second degree, in violation of Penal Law § 215.50(3). They also filed the underlying temporary order of protection.

Defendant filed the instant motion on April 7, 2015, and the People responded on April 22. The motion has been sub judice since then.

The original information, sworn out by a police officer on February 28, 2015, provides that:

The purported superseding information, sworn out by the same officer on March 10, 2015, contains language identical to that above, then adds two additional paragraphs:

The CPL does not authorize the filing of a superseding complaint, only a superseding information. As defendant correctly argues, the superseding instrument the People filed here contains hearsay - the officer "later learned" that the person in the [*3]car with defendant was the person named in a temporary order of protection. It is accordingly a "superseding complaint," and must be dismissed. When a court dismisses a superseding complaint, the original accusatory instrument, if otherwise valid, can be restored. Here, the original instrument contains no hearsay and defendant does not challenge its facial sufficiency. Accordingly, the Court dismisses the superseding complaint, and restores the original information.

On February 28, 2015, a police office observed the defendant in the car with a woman. That same day he swore to an accusatory instrument that neither mentioned nor named that woman. Ten days later, on March 10, 2015, that same officer swore to a second accusatory instrument in which he alleged that he saw a woman in the car with the defendant during the February 28 traffic stop and that he "later learned" her name and that she was the protected party named in a temporary order of protection that required the defendant to stay away from her.

As defendant correctly argues, the language in the superseding instrument asserting that the officer "later learned" the protected party's name is hearsay. Moreover, the identity of the person in the car with the defendant is a necessary element of the criminal contempt charge. See Penal Law § 215.50(3) (requiring People to prove "[i]ntentional disobedience" of a court order). This defect could only be cured through some nonhearsay explanation of how the officer learned the name of the person in the car. See, e.g., People v. Rivera, 45 Misc 3d 386, 987 N.Y.S.2d 570 (Crim Ct NY Count 2014) (trademark affidavit in which movie studio representative relied on police officer's description of seized DVD's to determine that they were counterfeit contained hearsay and did not convert complaint).

Moreover, this is not a case where the Court can be confident from the face of the superseding instrument that the officer obtained this information from a legitimately nonhearsay source, such as the defendant, whose out of court statements would be either admissions of a party opponent, People v. Heller, 180 Misc 2d 160, 689 N.Y.S.2d 327 (Crim Ct NY County 1998), or declarations against penal interest, People v. Leyva, 180 Misc 2d 160, 689 N.Y.S.2d 327 (Crim Ct NY County 2008), or from the officer's personal observation of a document or record that would itself not be hearsay. In this last situation the document or record would need to have been be filed along with the superseding instrument, just as both the DMV abstract and underlying order of protection were, and no such document was.

Defendant also argues that, even if it was R.G. herself who told the officer her name, the declaration would still be hearsay, because it would not be covered by the pedigree exception to the hearsay rule. The Court declines to rule on this point. Given the way the facts are alleged here - some ten days after the actual car stop the officer "learned" the name of the passenger of the car - the Court cannot conclude that there is a reasonable inference that R.G. herself was the source of that information.

A criminal action may be initiated by the filing of a misdemeanor complaint, which may be based in whole or in part on hearsay. However, absent a waiver of prosecution by information, see CPL § 170.65(3), the prosecution is required to file an accusatory instrument that contains non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the offense or offenses charged and the defendant's commission of those offenses. CPL §100.40(1)(a)-( c). Where the misdemeanor complaint contains hearsay, this requirement can be satisfied by the filing of one or more supporting depositions. CPL § 100.20; 170.65(1). Alternatively, CPL § 100.50(3) provides that a misdemeanor complaint "must or may be replaced and superseded by an information." Indeed, CPL § 170.65(1) requires that, absent a waiver of prosecution by information, either a superseding information "must" replace a misdemeanor complaint or the misdemeanor complaint must be supplemented by a supporting deposition, such that the instrument satisfies the non-hearsay requirements of § 100.40(1), in order for the case to proceed.

CPL § 100.50 makes clear that a misdemeanor complaint may be superseded only by an information or a prosecutor's information, which is formally similar to an information but is subscribed to by the prosecutor. See CPL § 100.35. There is no provision in that section, or in any other in the CPL, for the filing of a superseding complaint. Thus, while the issue arises infrequently, superseding complaints are generally dismissed as a nullity. People v. Torres, 151 Misc 2d 682, 683 (Crim Ct Bronx Co. 1991), recognized that a complaint must either be replaced by an information or be converted to one by the filing of supporting depositions. There, where the People filed a "Superseeding [sic] Complaint," the court dismissed it, noting that "there is no provision" in the CPL "for a superseding complaint executed by the complainant." See also People v. Gibbs, 35 Misc 3d 1224(A) at *2 (Sup Ct Bronx Co. 2012) ("a superseding complaint' is not a valid accusatory instrument"); People v. Hussein, 177 Misc 2d 139, 145 (Crim Ct Kings Co. 1998) (superseding complaint was "a nullity" because "[t]here is no statutory authority or relevant case law permitting the People to supersede a criminal court complaint with another complaint; to effectively supersede a complaint, the People must convert at the time they intend to supersede").

Here, the second accusatory instrument that the People filed was not a superseding information. It was subscribed to by a police officer - and hence was not a prosecutor's information - and contained hearsay that went directly to a necessary element of the criminal contempt charge, the identity of the person protected by the order of protection. Cf. People v. Fraser, 21 Misc 3d 1128(A), 875 N.Y.S.2d 822 (Crim Ct Kings County 2008) (no hearsay defect where officer "later learned" name of child in a child endangerment case; while age of child was an element, the name was not). This instrument was clearly a superseding complaint.

Thus, since the People filed a pleading not authorized by the CPL, the superseding complaint must be, and hereby is, dismissed in its entirety.

Although the superseding complaint must be dismissed, the original information, which charges the defendant only with VTL offenses, should be restored.

Ordinarily, where the People file a valid superseding information that charges the defendant with at least one offense alleged in the original accusatory instrument, all counts in the original instrument that are realleged in the superseder are dismissed by operation of law. CPL § 100.50(1). But where the superseding instrument is another complaint, an instrument, as discussed above, that the CPL does not recognize, the original instrument survives the dismissal of the superseding complaint. See. e.g., Torres, 151 Misc 2d at 683 (dismissing pursuant to CPL § 30.30 a complaint that survived the filing and dismissal of invalid superseding complaint); Hussein, 177 Misc 2d at 147 (count in original complaint survived dismissal of superseding complaint).

And such must be the outcome here. While the superseding complaint is dismissed, the original information is restored.

For the above reasons, the remedy here is not outright dismissal of the entire case. Rather, the superseding complaint is dismissed, and the original information is restored.

For the foregoing reasons, defendant's motion is granted. The superseding complaint is dismissed and the original information is restored. The Court also grants a Dunaway/Huntley hearing.

Judge of the Criminal Court