People v Dumay (2012 NY Slip Op 51809(U))

People v Dumay (Joseph)

2012 NY Slip Op 51809(U) [36 Misc 3d 159(A)]

Decided on September 13, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Joseph Dumay, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Shari Michels, J.), rendered August 19, 2009. The judgment convicted defendant, upon his plea of guilty, of obstructing governmental administration in the second degree.

Defendant, while represented by counsel, pleaded guilty to obstructing governmental administration in the second degree (Penal Law § 195.05) in satisfaction of several misdemeanor charges, and the Criminal Court imposed the agreed-upon sentence. On appeal, defendant argues that the accusatory instrument was facially insufficient to plead the offense of obstructing governmental administration in the second degree.

At the outset, we note that defendant's arguments concerning the accusatory instrument's facial sufficiency are jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]; see also People v Lucas, 11 NY3d 218, 220 [2008]) and must be reviewed in spite of his failure to raise it in the Criminal Court (see People v Alejandro, 70 NY2d 133).

The accusatory instrument was denominated neither a misdemeanor complaint nor an [*2]information, and, contrary to defendant's contention, he expressly waived his right to prosecution by information. Under these circumstances, the accusatory instrument should be evaluated as a misdemeanor complaint (cf. People v Kalin, 12 NY3d 225, 228 [2009]; People v Casey, 95 NY2d 354, 359 [2000]). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending the support the charge (CPL 100.15 [3]) and provides reasonable cause to believe that defendant committed the crime charged (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). "[A]n accusatory instrument must be given a reasonable, not overly technical reading" (People v Konieczny, 2 NY3d at 576). When the misdemeanor complaint herein is given such a reading, the "fair implication" (People v Casey, 95 NY2d at 360) of its averments support, or tend to support, the charge of obstructing governmental administration in the second degree.