Criminal Court of the City of New York, Kings County, December 28, 2022

Brooklyn Defender Services (Emily O'Toole of counsel) for defendant.

Eric Gonzalez, District Attorney (Michelle Kaminsky of counsel), for plaintiff.

Defendant, charged with forcible touching (Penal Law § 130.52 [1]), criminal contempt in the second degree (Penal Law § 215.50 [1]), and other related charges, challenged the facial sufficiency of certain counts of the accusatory instrument. On August 19, 2022, in a decision rendered orally from the bench, this court granted the defendant's motion as to the specific counts of the information challenged and denied it as to the remaining counts of the accusatory instrument. This written decision sets forth the reasoning behind the court's ruling.

The criminal action commenced with the filing of a felony complaint on October 29, 2020. The matter was reduced to a misdemeanor information on January 15, 2021. The accusatory instrument alleges that between September 14, 2020, and October 28, 2020, the defendant engaged in a course of conduct against the complainant in violation of a valid family court order of protection. The information sets forth 41 counts over 10 separate incidents. The defendant challenges the facial sufficiency of nine counts of criminal contempt in the second degree and one count of forcible touching.

In order to be facially sufficient, an information, together with any supporting depositions, must contain nonhearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. (See CPL 100.40 [1] [a]-[c]; see also People v Dumas, 68 NY2d 729 [1986]; People v Alejandro, 70 NY2d 133 [1987]; People v McDermott, 69 NY2d 889 [1987]; People v Case, 42 NY2d 98 [1977].) This does not require that the accusatory instrument state facts that would prove the defendant's guilt beyond a reasonable doubt, but rather that it 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 [2000].) The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn{**77 Misc 3d at 1134} from the allegations. (CPL 100.15; People v Alejandro; People v Henderson, 92 NY2d 677 [1999].)

The defendant is charged with nine counts of criminal contempt in the second degree pursuant to Penal Law § 215.50 (1). Under this subdivision of the statute, a person is guilty when "he engages in . . . [d]isorderly, contemptuous, or insolent behavior, committed during the sitting of a court, in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority." The People concede that the factual allegations do not make out a violation of this subdivision of the statute. They explain that the ADA drafting the information used a computerized drafting program to write the accusatory instrument and mistakenly picked subdivision (1) from the list of options rather than subdivision (3).^[FN1] The defendant is also charged with six counts of forcible touching, only one of which he argues is facially insufficient. The People concede that the factual allegations do not support the charge of forcible touching pertaining to the fifth alleged incident cited in the information. They assert that it was an oversight on their part. The defendant seeks dismissal of the entire accusatory instrument pursuant to CPL 30.30 (5-a). The People urge the court to dismiss the 10 facially insufficient counts and allow them to proceed with the remaining 31 counts of the accusatory instrument.

Criminal Procedure Law § 30.30 (5-a) states that a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of facial sufficiency under CPL 100.15 and 100.40 and that those counts that do not meet those requirements have been dismissed. The court is unaware of, and neither party has presented, any binding appellate authority that would affect this court's decision. However, there is a growing body of non-binding case law on this issue which this court has carefully considered. Many of these cases hold that a facially insufficient count in an accusatory instrument that the People have certified is sufficient under CPL 30.30 (5-a) renders the entire instrument defective. (See People v Minor, 74 Misc 3d 1205[A], 2022 NY Slip Op 50044[U] [Crim Ct, Kings County 2022]; People v C.H., 75 Misc 3d 636 [Crim Ct, Queens County 2022]; People v Herrera, 73 Misc 3d 334 [Crim Ct, Bronx{**77 Misc 3d at 1135}County 2021].) Other courts have dismissed the defective counts, maintained the remaining counts in the complaint, and upheld the validity of the People's statement of readiness. (See People v Mitchell Luzuriaga, Crim Ct, Kings County, 2022, No. CR-021910-21KN; People v Whitehead, 72 Misc 3d 608 [Utica City Ct 2021]; People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U] [Crim Ct, Kings County 2022].) This court holds that the facial insufficiency of one or more counts in the accusatory instrument does not require dismissal in toto. Therefore, in the instant case, the remaining 31 counts will survive as the court does not have a basis upon which to invalidate the entire accusatory instrument solely upon the dismissal of the 10 facially insufficient counts.

Criminal Procedure Law § 30.30 (5-a) closely mirrors New York State Senate Bill S1738 which sought to amend "section 30.30 of the Criminal Penal Law to ensure cases go to trial in a reasonable timeframe." (Senate Introducer's Mem in Support of 2019 NY Senate Bill S1738.) In an effort to strengthen the requirements for trial readiness to ensure timely prosecutions, the legislature addressed, among other areas of speedy trial law, the practice of partial conversion. Prior to the enactment of CPL 30.30 (5-a), courts treated each count of an accusatory instrument as "a separate and distinct accusatory instrument" and permitted "individual speedy trial treatment to discrete counts of an [*3]information." (People v Brooks, 190 Misc 2d 247, 250 [App Term, 1st Dept 2001].) The result was a piecemeal approach where two or more counts on the same docket were subject to multiple speedy trial timelines. Acknowledging the delay and confusion caused by such a practice, the legislature now requires the People to certify that every count of the information is properly converted and meets all the requirements of article 100 of the Criminal Procedure Law, and that all defective counts have been dismissed. (William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30.)

As litigants in this matter, the People do not have the final word on whether or not each count of their accusatory instrument meets the requirements for facial sufficiency. The most they can do is certify in good faith that it is their belief that each count of the accusatory instrument meets the requirements of CPL 100.15 and 100.40. Whether an information or complaint is facially sufficient is a legal determination that is ultimately decided by the court. The legislature has made clear{**77 Misc 3d at 1136} with the most recent amendments to the Criminal Procedure Law that courts should not penalize the People with the extreme sanction of dismissal for typographical errors, honest omissions, and oversights made in good faith under the circumstances. Here, there is no basis upon which to believe that the People acted in bad faith or without due diligence. Although some of the counts of the information are facially insufficient, it is clear that this is the result of inadvertent errors by the People. Furthermore, the court takes into account the value of motion practice upon the People's filing of a COC (certificate of compliance) and does not consider CPL 30.30 (5-a) a bar to the post-COC decisions rendered by the court on such motions (i.e., facial insufficiency, late discovery, speedy trial, readiness, etc.). Otherwise, post-COC motion practice would serve no purpose in relevant cases where the People's CPL 30.30 (5-a) certification was challenged due to facially insufficient counts. That being so, the court finds that the People have satisfied CPL 30.30 (5-a) even though the court is dismissing certain facially insufficient counts in the misdemeanor information.

Additionally, CPL 30.30 (5-a) must not be analyzed and applied in a vacuum. The very language of CPL 100.15, 100.40 and 170.35 gives a more in-depth, accurate understanding of the legislative intent behind CPL 30.30 (5-a). Each of those statutes, in setting forth the legal requirements of a valid accusatory instrument, speaks of the sufficiency of the information "or a count thereof."^[FN2] Section 170.35 (1) (a), in defining a {**77 Misc 3d at 1137}defective accusatory instrument, sets [*4]forth the basis upon which it is appropriate to dismiss an instrument "or count."^[FN3] The legislature's intent to allow for the dismissal of a defective count of an accusatory instrument without dismissing the entire information is clear in the language of those statutes. Criminal Procedure Law § 30.30 (5-a) references and incorporates those statutes but does not contain any language that would abrogate the provisions that allow for the dismissal of defective counts. The principles of statutory construction require that statutes "be interpreted so as to give effect to every provision" and that "a construction that would render a provision superfluous is to be avoided." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]; Matter of OnBank & Trust Co., 90 NY2d 725, 731 [1997].) In allowing for the dismissal of defective counts of the information, this court is upholding the intent of the legislature and giving full effect and meaning to every provision in CPL 30.30 (5-a), 100.15, 100.40 and 170.35 (1) (a).

Accordingly, the court finds the accusatory instrument is facially insufficient as to counts 3, 7, 11, 14, 21, 26, 31, 35 and 40, charging the defendant with criminal contempt in the second degree, and count 18, charging the defendant with forcible touching. The People may proceed with the remaining 31 counts in the accusatory instrument as CPL 30.30 (5-a) has been satisfied. The defendant's motion to dismiss is denied as to the remaining 31 counts of the information.

"[n]othing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations" (emphasis added).

CPL 100.40 (1), in setting forth the necessary elements of a facially sufficient accusatory instrument, refers to "[a]n information, or a count thereof" (emphasis added).

CPL 170.35 (1) (a), in setting forth the rules for motions to dismiss, states that

"[a]n information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when . . .

"[i]t is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend" (emphasis added).