Appeal from judgments of the Justice Court of the Town of Riverhead, Suffolk County (Henry S. Saxtein, J.), at the time of trial and the Justice Court of the Town of Southampton, Suffolk County (Deborah E. Kooperstein, J. , at sentencing), rendered on March 18, 2003. The judgments convicted defendant, upon a jury verdict, of disorderly conduct and resisting arrest.

Judgment convicting defendant of resisting arrest reversed on the law and accusatory instrument dismissed.

Appeal from judgment convicting defendant of disorderly conduct held in abeyance and matter remanded to the trial court for reconstruction of the pretrial hearing and trial testimony as to said charge.

In or about June 1996, two accusatory instruments were filed, one charging defendant with two counts of disorderly conduct (Penal Law § 240.20 [1], [3]), and the other charging defendant with resisting arrest (Penal Law § 205.30). Following a jury trial, defendant was convicted of one count of disorderly conduct (Penal Law § 240.20 [3]) and resisting arrest. On appeal, defendant contends, inter alia, that the accusatory instruments are jurisdictionally defective; that the charges should be dismissed because the trial court did not respond to his affidavit of errors and the trial transcripts are unintelligible rendering appellate review meaningless; that the trial court erred in its Sandoval determination and its denial of his motion for a mistrial; and that the People failed to establish his guilt beyond a reasonable doubt.

In order to be sufficient on its face, an information must substantially conform to the requirements set forth in CPL 100.15, including, inter alia, that it contain facts of an evidentiary [*2]character which support or tend to support the charge (CPL 100.15 [3]; 100.40 [1] [a]). Furthermore, the allegations in the information's factual part, along with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [1] [b]) and contain nonhearsay allegations that establish, if true, every element of the offense charged and the defendant's commission of such offense (CPL 100.40 [1] [c]; People v Alejandro, 70
NY2d 133 [1987]). The nonhearsay aspect may, as in the case at bar, be waived (People v Casey, 95 NY2d 354, 362 [2000]).

Although an element of resisting arrest is that the underlying arrest be lawful, (People v Jensen, 86 NY2d 248 [1995]), the relevant accusatory instrument herein states that "defendant was advised that he was under arrest for Disorderly Conduct," but does not provide any factual allegations that establish, if true, every element of the disorderly conduct charge. Consequently, we find that said instrument is jurisdictionally defective and must be dismissed (see People v Konieczny, 2 NY3d 569 [2004]; People
v Rodriguez, 1 Misc 3d 135[A], 2003 NY Slip Op 51657[U] [App Term, 9th & 10th Jud Dists]). However, we find that the accusatory instrument charging defendant with disorderly conduct (Penal Law § 240.20 [3]) is not jurisdictionally defective inasmuch as factual allegations of the instrument provide reasonable cause to believe that defendant committed the offense charged and every element of the offense charged is supported by nonhearsay allegations of fact (see CPL 100.40 [1]).
We note that in or about August 2004, defendant moved this court to compel the trial court to file an amended return since the trial stenographer could not be found and another stenographer had transcribed the minutes. Defendant stated that the transcript was riddled with untranslated portions rendering the transcript unusable in parts, which made it difficult to assess testimony when crucial questions and answers are garbled. By order dated October 27, 2004, this court denied said motion "without prejudice to appellant moving in the court below to reconstruct the record." Defendant subsequently moved in the trial court to compel the production of a comprehensive trial record. By order dated March 7, 2005, the trial court directed defendant to file an affidavit of errors despite the fact that CPL 460.10 (3) was inapplicable since minutes had been taken by a court stenographer. Defendant subsequently submitted an affidavit of errors, to which a court's return was not filed in that the record on appeal solely includes a standard clerk's return, entitled "Return."

Since almost every page of the transcript contains numerous "(Untranslated)" notations, we find the record to be inadequate for meaningful appellate review. Consequently, the appeal is held in abeyance and the matter is remanded to the trial court for a reconstruction hearing as to the disorderly conduct charge.
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: November 27, 2006