Procedural Background

On April 4, 2018, defendant was arraigned in Kings County Criminal Court, charged with one count of Falsely Reporting an Incident in the Third Degree in violation of Penal Law § 240.50 (3). Defendant moves to dismiss the accusatory instrument as facially insufficient (Criminal Procedure Law [CPL] 170.30 [1][a]), on the grounds that there are no allegations that the false statement he made to the police in response to the police-initiated inquiry was "gratuitously" given as required by the statute. Defendant also seeks dismissal of the complaint on speedy trial grounds (CPL 30.30 [1] [b]). The People oppose the motion asserting that the information is facially sufficient as the issue of whether or not defendant's statement was "gratuitous" is a question for the trier of fact. The People further maintain that they have not [*2]exceeded the speedy trial time for this case.

After oral argument, and upon review of the motion and affirmation in opposition, defendant's motion to dismiss the complaint is granted, as follows:

According to the information, on April 2, 2018, Police Officer Kai Lee,^[FN1] observed defendant seated on a bench near 46th Street and 6th Avenue, in Brooklyn, New York, bleeding with an apparent injury to his left leg. Thereafter, defendant was transported to Maimonides Hospital for treatment. At the hospital, at approximately 10:45 p.m., defendant stated to Detective John L. Burchette, in sum and substance, that he was standing on the corner of 46th Street and 6th Avenue, smoking a cigarette when an unknown male in a white Dodge Charger fired one shot that hit him in the left leg. Defendant stated that he did not see the driver and did not know why someone would shoot him.

Subsequently, Detective Burchette viewed video surveillance of 46th Street and 6th Avenue prior to the occurrence. That video showed defendant walking out of a nearby building at 545 46th Street, placing something in a nearby trash can and then walking back into the building unaided. The video surveillance footage of the same building approximately one hour later showed defendant exiting the building, while leaning on one of two individuals who were assisting him, then walking in the direction of the bench at 46th Street and 6th Avenue.

Pursuant to CPL 100.15 and 100.40 (1), an information is sufficient on its face when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof (see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). "In assessing the facial sufficiency of an information, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A] [Crim Ct, NY County 2008]; see also People v Jennings, 69 NY2d 103, 114 [1986]; CPL 170.45). The facts must demonstrate "reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]; CPL 100.40 [4] [b]). For a finding of facial sufficiency of an information, the factual part of the accusatory instrument must also establish a "prima facie case" that the defendant committed each and every element of the offense charged (CPL 100.40 [1][c]; Alejandro at 136-137), and that every element in the offenses charged in the accusatory instrument is supported by non-hearsay (CPL 100.40 [1][c]). An information that fails to satisfy [*3]these requirements is jurisdictionally defective (CPL 170.30; 170.35; Alejandro at 136-37; Dumas at 730).

Penal Law § 240.50 (3) (a) states, in relevant part: "A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he . . . gratuitously reports to a law enforcement officer or agency . . . the alleged occurrence of an offense or incident which did not in fact occur (emphasis added)."

The word "gratuitously" in Penal Law § 240.50 has been interpreted by New York courts to mean "voluntary" and "unsolicited" (People ex rel. Morris v Skinner, 67 Misc 2d 221, 223 [SCt, Monroe County 1971]). Critically, the false report must be made "gratuitously." A defendant does not commit the crime of falsely reporting an incident in the third degree when the defendant does not initiate contact with the police and merely gives false information in response to an officer's inquiries (see People v Clairborne, 36 AD2d 500 [2d Dept], rev'd on other grounds 29 NY2d 950 [1971]; cf. People v Ellis, 77 AD3d 496 [1st Dept 2010] ["The evidence established that defendant's 911 call in which he reported an assault that did not occur was a gratuitous report"]; People v Oliver, 193 Misc 2d 250 [City Ct, Auburn 2002] ["defendant started a chain of events resulting in police questioning and therefore was responsible for initiating police contact. Under these circumstances the initial statements by the defendant were made gratuitously and were not the product of solicitation by law enforcement [citation omitted]"). The pleading must contain sufficient facts to show that the report was "gratuitously made," in that it was not in response to police-initiated questioning (see People v Li, 192 Misc 2d 380, 382 [Dist Ct, Nassau County 2002]). In this case, even when viewing the pleadings in the light most favorable to the People, there are no allegations that make out the necessary element that defendant gratuitously gave the false information and was not the result of police investigatory inquiry. There are no allegations that defendant initiated the communication with the police by calling 911 (see e.g. People v Ellis, 77 AD3d 496), by flagging down a police officer who facilitated defendant's transport to the hospital, or by any other means. Reporting false information to law enforcement, absent any allegation that the report was unsolicited or voluntary, and not in response to police-initiated questioning (Li at 382), is insufficient to establish that defendant committed the crime of Falsely Reporting an Incident in the Third Degree (see People v Clairborne, 36 AD2d 500).

The Court acknowledges that the law compels what could be described as "an absurd result" by "allow[ing] a citizen to make a false complaint . . . thereby setting in motion a police investigation . . . and [being] able to avoid criminal charges because the investigating officers asked questions first without waiting for information to be volunteered" (People v Oliver, 193 Misc 2d at 252-53). Nonetheless, while this result is contrary to the "spirit and intent of this criminal statute" (id.), the Court must find that the complaint is jurisdictionally defective because controlling appellate authority holds that it does not provide reasonable cause to believe that defendant committed the crime of Falsely Reporting an Incident in the Third Degree.

Pursuant to CPL 30.30 (1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument (People v Walton, 165 Misc 2d 672, 674 [Crim Ct, Richmond County 1995]). The charge of Penal Law § 240.50 (3), a class A misdemeanor, [*4]requires the People to announce their readiness for trial within 90 days of commencing the criminal action against defendant (CPL 30.30 [1] b]).

Therefore, to succeed on the instant motion, defendant has the burden of demonstrating delay of more than 90 days. Once defendant has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded (People v Santos, 68 NY2d 859, 861 [1986]; People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002]).

It is defendant's position, that the case should be dismissed for the People's failure to provide a facially sufficient accusatory instrument and declare readiness within the statutorily prescribed time.

This Court agrees for the reasons discussed supra. The People are charged with the entire delay from arraignment on April 4, 2018 until the motion schedule was set on July 10, 2018, for a total of ninety-seven (97) days calculated as follows:

On April 4, 2018 defendant was arraigned, and the case was adjourned to April 26, 2018 for conversion (22 days). On April 26, 2018, the case was adjourned to July 10, 2018 for a supporting deposition. Although the People served and filed a supporting deposition (from the custodian of the referenced surveillance video) together with a statement of readiness off calendar on June 7, 2018, this Court's determination that the accusatory instrument is jurisdictionally defective renders the People's June 7 statement of readiness ineffective (People v Caussade, 162 AD2d 4, 8 [2nd Dept], appeal denied, 76 NY2d 984 [1990]) [one of "the specific requirements for a valid statement of readiness" is "a valid accusatory instrument upon which the defendant may be brought to trial") (75 days). On July 10, 2018, the Court set a motion schedule which stopped the speedy trial clock (CPL 30.30 [4] [a]; People v Bruno, 300 AD2d 93 [1st Dept. 2002], lv to appeal denied, 100 NY2d 641 [2003]) (0 days).

Accordingly, the case is dismissed as the People have exceeded the statutory speedy trial time for this case.

For the foregoing reasons, defendant's motion to dismiss the complaint on facial sufficiency and CPL 30.30 grounds is GRANTED. That portion of the motion seeking to reserve defendant's right to make further motions pursuant to CPL 255.20 (3) is denied as moot. Sealing is stayed for 30 days.

This constitutes the Decision and Order of this Court.