Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Miriam Cyrulnik, J., at plea; Dena E. Douglas, J., at sentencing), rendered October 27, 2010. The judgment convicted defendant, upon his plea of guilty, of forcible touching.

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Defendant pleaded guilty to forcible touching (Penal Law § 130.52), based on an incident on June 30, 2009 during which he "smacked" a woman's buttocks. On appeal, defendant claims that the factual portion of the accusatory instrument is facially defective because it does not contain allegations which, if true, establish every element of the crime charged (see CPL 100.40 [1] [c]). The People contend that defendant forfeited his claim that the accusatory instrument is facially defective by virtue of his failure to raise the issue before the Criminal Court by pretrial motion, and by virtue of his plea of guilty.

Contrary to the People's contention, the failure of the factual portion of an information to contain allegations which, if true, establish each and every element of the crime charged, is a jurisdictional defect that may be raised at any time, including on appeal, even if the defendant never raised the claim prior to entering his guilty plea (see People v Kalin, 12 NY3d 225, 228-229 [2009] People v Henderson, 92 NY2d 677, 679 [1999] People v Case, 42 NY2d 98, 99 [1977]). Thus, the People's contention is without merit.

The People's further contention—that defendant cannot raise his claim that the accusatory instrument is facially defective as the allegations therein, if true, do not establish every element of the crime charged because he impliedly waived, through counsel, his right to be prosecuted by information—is also without merit. A waiver of the right to be prosecuted by information may be implied (see People v Connor, 63 NY2d 11, 14 [1984] People v Riser, 22 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2009]). Here, the People assert that defendant waived his right when his counsel, during the arraignment of another defendant whom she represented in an unrelated case on the date defendant was arraigned, but prior to defendant's appearance, waived the reading of the rights and charges, but not the rights thereunder, for the case before the court and for all other cases that were before the court that day.

The right to be prosecuted by information is a substantial right. A waiver of that right by a defendant must be made knowingly and intelligently. A purported waiver through counsel of [*2]that right for all of the cases pending before the court, during a particular session, prior to the defendant's appearance in court does not constitute a knowing and intelligent waiver (see People v Weinberg, 34 NY2d 429, 431 [1974] see also People v Fernandez, 20 NY3d 44, 55, n 1 [2012, Pigott, J., dissenting] [a purported waiver of the defendant's right to a supporting deposition by counsel waiving the reading of rights and charges for all of her cases during an evening court session does not constitute a knowing waiver]). Thus, in this case, defendant did not impliedly waive his right to be prosecuted by information. Consequently, we must evaluate the sufficiency of the accusatory instrument using the standards that apply to an information (see CPL 100.40 [1]).

Defendant's contention that the factual part of the accusatory instrument contains no facts supporting two of the elements of the crime of forcible touching (Penal Law §§ 130.05 [1] 130.52), lack of consent and the use of force, is without merit. The factual part of the accusatory instrument indicates that defendant's actions caused the victim "to become alarmed and annoyed." This allegation is sufficient to address the lack of consent element, asthe victim did not "expressly or impliedly acquiesce" in defendant's conduct (Penal Law § 130.05 [2] [c] see People v Yavru-Sakuk, 3 Misc 3d 36, 38 [App Term, 2d & 11th Jud Dists 2004], mod on other grounds 4 NY3d 814 [2005]). Moreover, the factual portion of the accusatory instrument indicates that defendant "smacked" the victim, which sufficiently addresses the use of force element (see People v Taylor, 23 Misc 3d 361, 366 [Nassau Dist Ct 2009] People v Powell, 19 Misc 3d 364, 369-370 [Crim Ct, Kings County 2008] see also People v Nuruzzaman, 8 Misc 3d 356, 357 [Crim Ct, NY County 2005]). In addition, contrary to defendant's contention, the statute, which indicates that "[f]or the purposes of this section, forcible touching includes squeezing, grabbing or pinching" (Penal Law § 130.52), does not require that the act involve a form of compression, as the illustrations "are not exclusive but intended to serve as examples of the type of conduct prohibited" (People v Soto, 192 Misc 2d 161, 167 [Crim Ct, NY County 2002]).

However, the judgment must be reversed and the accusatory instrument dismissed, as, affording the factual allegations a fair and not overly restrictive or technical reading (see People v Casey, 95 NY2d 354, 360 [2000]), the accusatory instrument contains no factual allegations addressing the elements of the crime of forcible touching that the act was committed "for no legitimate purpose," and that defendant touched the victim's sexual or intimate parts "for the purpose of degrading or abusing [the victim] or for the purpose of gratifying [his] sexual desire" (Penal Law § 130.52). The failure of the factual part of the accusatory instrument to address these elements renders it facially defective (see People v Konieczny, 2 NY3d 569, 576 [2004] People v Alejandro, 70 NY2d 133, 136 [1987]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Aliotta, J.P. and Solomon, J., concur.

Pesce, J., taking no part.
Decision Date: February 07, 2014