Defendant is accused of criminal contempt because a police detective saw him inside a particular apartment. While the detective has asserted that the apartment at issue was either the home or place of work of the protected party named in an order of protection entered against the defendant, the information does not explain how the detective knew that this location was in fact the protected party's home or place of work. This "conclusory allegation" renders the information facially insufficient. Defendant's motion to dismiss is GRANTED with leave to the People to supersede. Sealing is stayed for 30 days.

According to the accusatory instrument, Detective Steven Tillmon saw the defendant inside of 95 West 119th Street, Apt 3G, on the morning of February 18, 2015. The People allege that this apartment is the home or place of work of "N.W." and that N.W. is the protected party in an order of protection the requires the defendant, inter alia, to stay away from N.W.'s home or place of work.

Defendant filed the instant motion on April 23, 2015, and the People responded on May 5. The matter has been sub judice since then.

The misdemeanor complaint, sworn out by Police Officer Rafelina Pichardo, provides that

The information here is facially insufficient because it does not allege a basis for the detective's assertion that the apartment in which he found the defendant was either the home or place of work of N.W., the person protected by the order of protection.

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

For an information to be facially sufficient, each element of the charged offense or offenses [*2]must be supported by "facts of an evidentiary character." CPL § 100.15(3). The Court of Appeals has repeatedly held that "conclusory allegations" are not "facts of an evidentiary character." Thus, for example, in People v. Dumas, 68 NY2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986), an accusatory instrument was insufficient when it contained "a conclusory statement that the defendant sold marihuana, but [was not] supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana." Similarly, in People v. Dryden, 15 NY3d 100, 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010), the same was true for a "conclusory statement that an object recovered from a defendant is a gravity knife." At a minimum, the accusatory instrument should have "explain[ed] briefly, with reference to [the deponent's] training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife." Id. Finally, in People v. Lebron, 22 Misc 3d 217, 220—21, 866 N.Y.S.2d 560 (Crim Ct NY County 2008), the court found facially insufficient an instrument charging the defendant with possessing drugs and drug paraphernalia recovered from "the defendant's apartment," absent "evidentiary facts" that would support the conclusion that the defendant "owned or occupied" the apartment. See also People v. Taylor-Atkins, 42 Misc 3d 1214(A), 986 N.Y.S.2d 867 (Crim. Ct. NY County 2014) (same, where allegation was that police officer found marijuana in "defendant's locker").A fact of an "evidentiary character" is a "nonconclusory description[] of what the deponent personally observed, heard or experienced." People v. Concepcion, 36 Misc 3d 551, 945 N.Y.S.2d 543 (Crim. Ct. NY County 2012) (citing Dumas). It is "the written equivalent of competent and relevant testimony which the deponent could give orally if called as a witness." People v. Phillipe, 42 Misc 2d 574, 578, 538 N.Y.S.2d 400, 404 (Crim. Ct. Kings County 1989 ). Thus, where the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a "conclusory allegation" - whether it be the claim that a substance is marijuana, or the claim that a knife is a prohibited gravity knife, or the claim that an apartment is the home or place of business of a particular person.

By contrast, where the fact at issue can reasonably be determined from other facts alleged, it is not a "conclusory allegation." Thus, for example, in People v. Santos, 46 Misc 3d 1217(A), 9 N.Y.S.3d 595 (Crim Ct. NY County 2015), this Court found that the allegation that drugs were recovered from the "defendant's purse" was not a conclusory allegation. Rather, "[d]efendant's ownership of the purse [was] a reasonable inference that derive[d] from other facts pled: defendant was present in the same room as the purse, and other items belonging to her were also in the room."

Similarly, in People v. Morris, 44 Misc 3d 810, 991 N.Y.S.2d 288 (Crim. Ct. NY County 2014), a deponent's allegation that she suffered "substantial pain" was not a "conclusory allegation" because it could naturally be determined from other facts that were alleged; specifically, that the defendant "slapped the complainant and bit her in the shoulder" in the context of an "argument" in which the parties were "fighting."

The instant case is clearly distinguishable from Santos and Morris. The allegation that the apartment in which the detective found the defendant is either the home or place of business of N.W. is a "conclusory allegation," since it lacks any factual support. The detective's belief that N.W. was somehow connected to the apartment derives solely from some other fact that is not pled. Perhaps defendant told the detective that the apartment was N.W.'s home or place of business, or perhaps the detective reviewed a lease or some other document that revealed this, or maybe her name was on the [*3]door or mailbox. But the issue remains shrouded in mystery, since no basis for the conclusion that the apartment had any connection with N.W. has been pled.

Very recently, this Court dismissed on a remarkably similar finding of a "conclusory allegation." In People v. Garcia, ___ Misc 3d ___, 2015 WL 3915768 (Crim Ct NY County June 26, 2015), the particular allegation was that the defendant threatened the complainant over the telephone. But the information did not allege any basis for the complainant's conclusion that the defendant was in fact the person who made the threat, in that it did not allege that the defendant identified himself or that the complainant recognized the defendant's voice.^[FN1] The instant case is no different. The bare conclusion that the apartment in which the detective found the defendant was associated with N.W. is simply not enough.Accordingly, since the information does not plead facts of an "evidentiary character" leading to a reasonable inference that the apartment in which defendant was found was the home or place of business of N.W., it is facially insufficient.

This is a case where there might be additional facts available to the People that, if properly pled, could cure the insufficiency. Accordingly, while the Court is dismissing the information, it does so with leave to the People to supersede. Sealing is stayed for 30 days.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted, with leave to the People to supersede. Sealing is stayed for 30 days.