Upon the submitted papers, the Defendant's motion to dismiss the instant criminal action pursuant to CPL §§ 170.30(1)(a) & (e); 170.35(1)(a) & (b) and (2); 100.40; 100.15 and 30.30 is hereby denied in its entirety as follows:

In the instant criminal action, the Defendant is charged with violating Penal Law §§ 110/120.00(1) - Attempted Assault in the Third Degree (Class B Misdemeanor); 120.15 - Menacing in the Third Degree (Class B Misdemeanor) and Penal Law 240.26(1) - Harassment in the Second Degree (Violation) for an incident that allegedly occurred on or about August 23, 2010 at approximately 3:30 p.m. inside of 3342 Atlantic Avenue in Kings County.

The Defendant now moves to dismiss the underlying action on the grounds that the domestic incident report was insufficient to convert the criminal complaint into a misdemeanor information and, therefore the instant criminal action is untimely pursuant to CPL 30.30.

Parties' Contentions

The Defendant argues in his moving papers, contrary to the presiding court's ruling on November 29, 2010, that the domestic incident report ("DIR") served and filed by the People on November 4, 2010 was insufficient to convert the misdemeanor complaint into an information.^[FN1] Specifically, the Defendant argues that the second page of the DIR, prepared by the complaining witness, does not include the Defendant's name. The Defendant argues that although the first page of the DIR does identify the Defendant, said page was prepared by a police officer and as such does not meet the requirements of CPL 100.30 for a supporting deposition. Therefore, the Defendant argues that the People never converted the misdemeanor complaint into an information and that they are now outside of the speedy trial time period to bring the underlying action to trial.

In opposition, the People argue that both pages of the DIR are intended to be read together as a two page document and that the DIR is signed by the Complaining Witness. The People argue that even though only the second page of the DIR includes the Complaining [*2]Witness's handwriting and signature, the top portion of the second page reads "Page 2 of NYS Domestic Incident Report: Supporting Deposition" and therefore both pages of the DIR should be read together as a whole.

Initially, the Court finds that although the Defendant's motion to dismiss the underlying action for failure to convert the misdemeanor complaint into an information was made more that 45 days after the Defendant's arraignment on the misdemeanor complaint, there is good cause for determining the instant motion on its merits. CPL 255.20 - Pre-trial motions; procedure, requires that:

(1) Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment.

...

3. Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at anytime [any time] before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.

Although jurisdictional defects, such as failure to allege a necessary element of a crime, are nonwaivable and can be raised at any time (See People v Casey, 95 NY2d 354 (NY 2000)), facial insufficiency on the basis of a hearsay pleading violation of CPL 100.40 (1) (c) is a nonjurisdictional defect and is deemed waived absent a pre-trial motion (See People v. Keizer, 100 NY2d 114, 121 (NY 2003); People v. Casey, supra (NY 2000); People v McConnell, 2006 NY Slip Op 26081 (NY App Term 2nd Dept. 2006)). The Court of Appeals have upheld lower court decisions to deny untimely facial insufficiency motion made on the basis of nonjurisdictional errors and have held that it is within the discretion of the trial court to deny said motions pursuant to CPL 255.20 (See People v. Dean, 74 NY2d 643, 644 (NY 1989), See also People v. Davidson, 98 NY2d 738, 739, 780 (NY 2002); People v. Key, 45 NY2d 111 (NY 1978)). Several lower court decisions have also denied defendants' motions to dismiss an action for facial insufficiency as untimely, where said motions were not based upon jurisdictional defects (See People v. Filippino, 2008 NY Slip Op 50318U (NY Sup Ct Richmond County 2008); People v. Gomez, 2005 NY Slip Op 51614U (NY City Crim. Ct. New York County 2005); People v. McGowan, 2002 NY Slip Op 40330U (NY City Crim Ct Richmond County 2002)).

In the instant motion, the Defendant does not argue that the accusatory instrument is jurisdictionally facially insufficient on any of the charges, but only that the DIR was insufficient to convert the nonhearsay factual allegations in the criminal complaint for the purpose of [*3]converting the misdemeanor complaint into an information. Therefore, the Defendant's instant motion to dismiss is subject to the timeliness requirements of CPL 255.20. The Defendant indicates in his moving papers that on November 29, 2010, the first appearance date following the People's filing of the DIR on November 4, 2010, the Defendant objected to the conversion of the misdemeanor complaint on the grounds that the Complaining Witness's written statement on the second page of the DIR did not name the Defendant as the perpetrator. The Court notes that the action sheet for November 29, 2010 does not indicate that the Defendant made any such objection, however, the People do not dispute the Defendant's claim that he objected to the conversion of the misdemeanor complaint into an information on said date. Further, the Defendant did request a motion schedule on the next adjourn date (January 20, 2011) to make the instant motion to dismiss. Therefore, the Court finds that there is good cause to determine the instant motion on its merits as the Defendant promptly moved to dismiss the instant action after the People filed the DIR to convert the misdemeanor complaint into an information.

As the Defendant's speedy trial argument hinges upon his argument that the People never properly converted the misdemeanor complaint into an information, the Court will first address the conversion issue before calculating the speedy trial time accrued by the People.

In addressing the non-hearsay requirement in domestic violence cases, the lower courts have found that a DIR may be received as a supporting deposition to convert a criminal complaint into a misdemeanor information, based upon the sworn non-hearsay allegations present in the statement section of the DIR (See People v. Salamone, 2009 NY Slip Op 51445U (Crim Ct, New York County 2009); People v. Modica, 187 Misc 2d 635 (Crim Ct, Richmond County 2001)).

The standard for determining whether the factual allegations in a DIR are sufficient to convert an accusatory instrument into an information is laid out in People v. Modica is as follows:

"CPL 100.15 prescribes the factual requirements of a misdemeanor complaint. In subdivision (3), the statute mandates that the complaint must contain "facts of an evidentiary character supporting or tending to support the charges." These allegations may be based on the personal knowledge of the deponent or upon information and belief. The statute admonishes that "[n]othing contained in this section limits or affects" the requirements that an information must be "supported by non-hearsay allegations" contained in the information itself and/or any supporting depositions. It follows from this statutory language that a misdemeanor complaint can be transformed into a facially sufficient information by factual allegations contained in a supporting deposition. Thus, not all of the essential elemental facts must be contained within the factual portion of the misdemeanor complaint. Thus, any divergence between the facts contained in the body of the misdemeanor complaint and any supporting deposition is of no significant moment as long as the nonhearsay allegations taken from either or both the complaint and the supporting deposition make out the elements of the crime charged. Any other interpretation would eviscerate the significance of the supporting deposition as a factual document with evidentiary value." (People v. Modica, supra at 636)

CPL 100.40(b) specifically states that the factual allegations in both the accusatory instrument and any supporting depositions may be read together to determine if there is reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. CPL 100.20 also defines a supporting deposition as a written document containing "factual allegations which supplement those of the accusatory instrument and support or tend [*4]to support the charge or charges." As CPL 100.40 allows for supporting deposition to be read together with accusatory instruments to establish reasonable cause and CPL 100.20 defines a supporting deposition as containing factual allegations that supplement the accusatory instrument, it follows that a DIR submitted as a supporting deposition is not limited to merely restating the facts as contained in the complaint and may contain additional and different facts to support the charges in the accusatory instrument (See People v. Modica, supra at 636).

The Court recognizes that an alternative standard was set forth in People v. Stridiron (175 Misc 2d 16 (Crim Ct Queens County 1997)), which holds that a DIR being offered as a supporting deposition:

"must either refer to the facts in the accusatory instrument or must recite factual allegations which substantially mirror those set forth in the accusatory instrument. In other words, if a document offered as a supporting deposition does not refer to the accusatory instrument, it must contain the same facts as the factual portion of the accusatory instrument. Such documents must clearly: identify the defendant; state the date, time and place of the occurrence; and contain every element of each crime charged in the complaint." (People v. Stridiron at 18).

In People v. Salamone (2009 NY Slip Op 51445U (2009)), the Criminal Court for New York County addressed the Stridiron standard and found that it "places form over substance" and creates a "hyper technical pleading burden" that is inconsistent with the overall pleading rationale that the Court of Appeals has directed courts to apply when evaluating the sufficiency of the facts alleged in an information (People v. Salamone, supra, citing People v. Casey, 95 NY2d 354, 359 (2000); see also People v. Ochoa, 2009 NY Slip Op 50541U (Crim Ct New York County 2009); People v. Olmo, 2003 NY Slip Op 51721U, 1 (Crim Ct Bronx County 2003)). This Court agrees with the rationale applied in People v. Salamone, that the standard laid out in People v. Stridiron is too rigid and form specific, to correspond with the Court of Appeals' rationale for evaluating misdemeanor information as given in People v. Casey. Further, CPL 100.20 does not include any of the form specific requirements laid out in People v. Stridiron, and only specifies that a supporting deposition contain factual allegations, "based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein."

As such, this Court disagrees with the Defendant's argument that Stridiron dictates the appropriate standard for evaluating the complaining witness's DIR statement, and will apply the standard as set forth in People v. Modica.

The factual portion of the People's accusatory instrument reads as follows:

The Deponent is informed by Dennesha L. Burke that, at the above time and place [on or about August 23, 2010 at approximately 3:30 p.m. inside of 3342 Atlantic Avenue in Kings County], the Defendant did slap the Informant in the Informant's eye with the Defendant's hand and the Defendant did hold Informant by the Informant's neck.

The Informant is further informed by the Informant that the above-described actions caused the Informant to suffer a red eye, facial swelling, substantial pain, to fear further physical [*5]injury and to become alarmed and annoyed.

On November 4, 2010, the People served and filed a DIR dated August 23, 2010 to convert the misdemeanor complaint into an information. The DIR consists of two pages, the first page was prepared by a police officer and the second page was prepared by the complaining witness, Ms. Dennesha L. Burke. The first page of the DIR identifies the Defendant Deon Ellis, includes specific information as to the time and place of the alleged incident, the relationship between the Defendant and the Complaining Witness and is signed by the police officer. The second page of the DIR includes a written statement signed and sworn to by Ms. Burke as the "Victim/Deponent" and signed by the same police officer as the "Witness or Officer". The second page of the DIR reads as follows:

He was going through my phone and telling me that I have a man and I should move out and live with him then he hit me in the face and held me by the neck.

The second page of the DIR further indicates that the incident occurred on "8/23/10" at "1530"

Initially, this Court finds that the information provided by Ms. Burke in her written statement clearly refers to the same incident as the accusatory instrument. Ms. Burke both swore to the written statement on the DIR and is identified as the Informant in the accusatory instrument. Ms. Burke states in her written statement that the incident occurred on August 23, 2010 at 1530 i.e. 3:30 p.m., which is the same date and time of occurrence alleged in the accusatory instrument.

Further, the Court disagrees with the Defendant's argument that the first and second pages of the DIR cannot be read together as a single document to convert the accusatory instrument into a misdemeanor information. In People v Revenco (2010 NY Slip Op 51171U (NY App. Term 2nd Dept 2010)) the Appellate Term Second Department found that a misdemeanor information was facially sufficient based upon the information provided in the two-paged "supporting deposition". The Appellate Term found the defendant's argument that "the information was facially insufficient because he was not adequately named in the supporting deposition, to be without merit" indicating that "[w]hen read together, both pages of the supporting deposition clearly identify defendant." (People v Revenco, supra). Although the Appellate Term does not specifically indicate in their decision that the "supporting deposition" before them was a DIR, upon review of the case file for the People v. Revenco the Court finds that said "supporting deposition" was a two paged DIR.^[FN2] Therefore, when the Appellate Term refers in their decision to "both pages of the supporting deposition" they are specifically referring to a two paged DIR. Furthermore, the form of the DIR before the Appellate Term in People v. Revenco is identical to the DIR in the instant criminal action in that both DIRs consist of two pages, the first of which was prepared and signed by a police officer and the second of which consists of a written statement prepared and signed by the complaining witness. As such, the Appellate Term found that both pages of a DIR may be read together to determine if they adequately identify the Defendant for purposes of converting the misdemeanor complaint into an information even where only the second page of the DIR was prepared and signed by a [*6]complaining witness.

In the instant criminal action, although the first page of the DIR was prepared by a police officer, it clearly refers to the same incident as the Complaining Witness's written statement and as alleged in the misdemeanor complaint that allegedly occurred on August 23, 2010 at 3:30 p.m. Although the nonhearsay basis for converting the misdemeanor complaint into an information comes from Ms. Burke's written statement, which does not specifically include the Defendant's name, both pages of the DIR may be read together as a single document and when read together they adequately identify the Defendant Deon Ellis as the perpetrator of the alleged crimes that occurred on August 23, 2010 at 3:30 p.m. Further, the fact that Ms. Burke's written statement portion of the DIR does not specifically include the Defendant's name does not render it defective as a supporting deposition (See People v Revenco, 2010 NY Slip Op 51171U (NY App. Term 2nd Dept 2010); People v Cha Kim Son, 4 Misc 3d 1007[A], 791 N.Y.S.2d 871, 2004 NY Slip Op 50755U (Mount Vernon City Ct)).

As such, the Court finds that the People converted the accusatory instrument into a misdemeanor information by submitting a DIR. Therefore, the Court will calculate the speedy trial time accrued by the People accordingly.

Calculation of speedy trial time

On a motion to dismiss an action pursuant to CPL § 30.30, the Defendant bears the initial burden of demonstrating that the People have exceeded the applicable time to bring the action to trial pursuant to CPL § 30.30. If the Defendant makes said showing, the burden shifts to the People to establish that certain periods of time should be excluded from the calculation of delay (See People v. Santos, 68 NY2d 859, 861 (1986); People v. Price, 2009 NY Slip Op 1146 (2nd Dept 2009); People v. Coyle, 2008 NY Slip Op 51263U (NY App. Term 2nd Dept 2008)). It is the defendant's duty, either in its initial submission or in a reply to the People's opposition, to draw the court's attention to the discrete periods that the defendant claims should have been chargeable to the People pursuant to CPL 30.30 and to explain why (See People v Beasley, 2011 NY Slip Op 2076 (NY 2011)).

Where a Defendant is accused of multiple charges, not including a felony, and at least one of the charges is a misdemeanor punishable by a sentence of more than three months in jail, the People must be ready for trial within 90 days of the commencement of the criminal action, minus any excludable periods (See CPL §§ 30.30 (1)(b), (4)). This time is calculated from the day immediately following the date that the initial accusatory instrument was actually filed with the court (See People v. Cooper, 98 NY2d 541, 543 (NY 2002); CPL § 30.30 (1)(b); See also CPL § 1.20(16) & (17); People v. Stirrup, 91 NY2d 434, 438 (1998); People v. Stiles, 70 NY2d 765 (1987); People v. DiMeglio, 294 AD2d 239, 240 (NY App. Div. 1st Dept 2002); People v. Terrence, 163 AD2d 437 (NY App. Div. 2nd Dept 1990)).

Although in the instant criminal action the Defendant is currently only being charged with Penal Laws §§ 110/120.00(1); 120.15 and 240.26(1), the highest count of which is Class B Misdemeanor, the Defendant was originally arraigned on August 24, 2010 on a misdemeanor complaint including the charge of Penal Law 120.00 - Assault in the Third Degree, which is a Class A Misdemeanor. Therefore, the People are required to be ready for trial within 90 days, measured from August 25, 2010, not including any excludable time (See People v. Cooper, 98 NY2d 541 (NY 2002); People v. Sawyer-Plato, 2011 NY Slip Op 1196 (NY App. Div. 4th Dept 2011)). As the instant criminal action had not yet been brought to trial, the Court finds that the Defendant has met his initial burden and that it is upon the People to establish that certain [*7]periods of time should be excluded from the calculation of delay.

August 24 - September 28, 2010

On August 24, 2010, the Defendant was arraigned by misdemeanor complaint on the charges of Penal Laws §§ 120.00(1); 110/120.00(1); 120.15 and 240.26(1). The criminal action was adjourned to September 28, 2010 for the People to convert the misdemeanor complaint into an information. Accordingly as of September 28, 2010 the People accrued 35 days of delay.

September 28 - November 29, 2010

On September 28, 2010, the People announced that they were not ready for trial and the criminal action was adjourned to November 29, 2010 for the People to convert the misdemeanor complaint into an information. On November 4, 2010, the People served and filed a statement of readiness and a copy of the DIR off calender to convert the misdemeanor complaint in to an information. As previously stated, the Court finds that the DIR was sufficient to convert the misdemeanor complaint into an information on the charges of Penal Laws §§ 110/120.00(1); 120.15 and 240.26(1). The People's speedy trial time is tolled as of the date they filed the statement of readiness and DIR on November 4, 2010 (See People v. Stirrup, 91 NY2d 434 (NY 1998); People v. Roebuck, 279 AD2d 350 (NY App. Div. 1st Dept)lv denied96 NY2d 805 (NY 2001)). Therefore, the People are charged with 36 days of delay for the period between September 28 and November 29, 2010. Accordingly as of November 29, 2010 the People accrued 71 days of delay.

November 29, 2010 - January 20, 2011

On November 29, 2010, the presiding court indicated that the People had served and filed a statement of readiness and DIR off calender on November 4, 2010. The People moved to dismiss the charge of Penal Law § 120.00. The presiding court dismissed the charge of Penal Law § 120.00 upon the People's motion, and deemed the remaining charges of Penal Laws §§ 110/120.00(1); 120.15 and 240.26(1) converted. The presiding court adjourned the criminal action to January 20, 2011 for the People to provide discovery by stipulation to the Defendant ("DBS"). As the adjournment from November 29, 2009 to January 20, 2011 was made for DBS, this period of time is excluded (See People v. Dorilas (Pascal), 2008 NY Slip Op 28162, (App. Term 2nd Dept 2008) citing CPL § 30.30 (4)(a)). Accordingly as of January 20, 2011 the People accrued 71 days of delay.

January 20 - April 4, 2011

On January 20, 2011, the People served and filed DBS and the Defense requested a motion schedule to move to dismiss the instant criminal action. The presiding court created a motion schedule whereby the Defendant was required to serve and file their motion papers by February 10, 2011 and the People were required to serve and file their opposition papers by March 3, 2010. The matter was adjourned to April 4, 2011 for the Court to render a decision on the Defendant's motion to dismiss. The Defense served and filed their motion papers on February 10, 2011 as required by the motion schedule, however, the People did not serve and file their opposition papers until March 11, 2010. When the People respond to a Defendant's motion beyond the date scheduled by the court and fail to offer any explanation for their delay, the time between the scheduled response date and the People's actual response date is "properly charged to the People, since it constitutes a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court" (People v. Gonzalez, 266 AD2d 562, 563 (NY App. Div. 2d Dept 1999) upon reconsideration appeal denied 94 NY2d 920 (2000); see also People v. Delosanto, 307 AD2d 298, 299 (NY App. Div. 2d Dept 2003) lv denied 100 [*8]NY2d 641 (2003); People v. Commack, 194 AD2d 619 (NY App. Div. 2d Dept 1993)). Although the People have not included in their opposition papers any explanation for their delay in responding to the Defendant's motion to dismiss, the People's failure to respond to the Defendant's motion in accordance with the motion schedule has not resulted in any delay as the instant decision is still being issued on April 4, 2011 (See People v Barnes, 2010 NY Slip Op 51608U (NY City Crim. Ct. NY County 2010)). Therefore, the adjournment from January 20 to April 4, 2011 is excludable as a "reasonable period of delay" resulting from the Defendant's pre-trial motion practice (CPL 30.30(4)(a); See also People v. Douglas, 209 AD2d 161 (App. Div. 1st Dept 1994) lv denied 85 NY2d 908 (1995) citing People v. Worley, 66 NY2d 523, 527 (1985) and People v. Moorhead, 61 NY2d 851 (1984)). Accordingly as of April 4, 2011 the People have accrued a total of 71 days of delay. Therefore, the People are still within the statutory time limit to bring the underlying criminal action to trial.

The Court further notes that the Defendant has not submitted any reply papers nor included in their moving papers any substantive legal arguments, apart from his position that the DIR was insufficient to convert the misdemeanor complaint into an information, as to why certain periods of time should be charged to the People pursuant to CPL 30.30 (See People v Beasley, 2011 NY Slip Op 2076 (NY 2011)).

Accordingly, the Defendant's motion to dismiss the underlying criminal matter pursuant to CPL §§ 170.30(1)(a) & (e); 170.35(1)(a) & (b) and (2); 100.40; 100.15 and 30.30 is hereby denied.

The foregoing constitutes the Order and Decision of the Court.

____________________________________________________________________ _____

DateHON. Robert D. Kalish

Judge, Criminal Court