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People v. Rozario

July 2, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DONALD ROZARIO, APPELLANT.



Accepted for Miscellaneous Reports Publication

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

As corrected through Wednesday, October 1, 2008

{**20 Misc 3d at 78}

OPINION OF THE COURT

Memorandum

Judgment of conviction modified as a matter of discretion in the interest of justice by deleting SOC 5 from the conditions of probation and by modifying SOC 13 in accordance with the decision herein; as so modified, affirmed.

Defendant contends that the accusatory instrument is insufficient on its face because it does not contain non-hearsay allegations that, if true, would establish every element of the charged offense of endangering the welfare of a child (Penal Law § 260.10 [1]; see CPL 100.40 [1] [c]). More specifically, he argues that the only allegation establishing the age of the victim was hearsay. This defect in the accusatory instrument is non-jurisdictional in nature (see People v Keizer, 100 NY2d 114, 121 [2003]; People v Casey, 95 NY2d 354, 362-363 [2000]), and defendant has therefore waived the issue by pleading guilty (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Keizer, 100 NY2d at 121).

Defendant also asserts that the information and supporting deposition do not allege the relevant time frame with adequate specificity. The information itself, as construed by both defendant and the People, places the telephone calls forming the basis for the charge against defendant between the months of August 2004 and July 2005; the supporting deposition, when read closely, narrows this time frame to the approximate eight-month period from November of 2004 to around July 4, 2005. Defendant contends that the exact dates and times of the telephone calls were available to the People from telephone records, and that in order to render the time frame set forth in the information adequately specific to serve the constitutional purposes of providing him with fair notice of the charge against him and protecting him against double jeopardy, the People were obligated to allege these dates and times in the information. This lack of specificity in the alleged time frame, he asserts, renders the information together with its supporting deposition (the two documents together are hereinafter referred to simply as "the information") jurisdictionally defective. The People argue that the issue is not preserved because defendant failed to raise it in his affidavit of errors (see People v Klein, 7 NY2d 264 [1959]). By implication, they argue that the alleged{**20 Misc 3d at 79} defect is non-jurisdictional, since a claim of a jurisdictional defect does not have to be raised in the affidavit of errors in order to be reviewable on appeal (see People v Nicometi, 12 NY2d 428, 430 [1963]). We find that the alleged defect does not rise to the level of rendering the information jurisdictionally defective.

In People v Watt (81 NY2d 772 [1993]), the Court of Appeals reenunciated the connection between the specificity of the time-frame allegation in an accusatory instrument and the rights to fair notice and protection against double jeopardy. The Court said: "The [accusatory instrument] must . . . set forth a time interval which reasonably serves the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation, so as to enable the defendant to prepare a defense and to use the judgment against further prosecution for the same crime" (id. at 774 [internal quotation marks and citations omitted]; see also e.g. People v Sedlock, 8 NY3d 535, 538 [2007]; People v Zambounis, 251 NY 94 [1929]).

In People v Casey (95 NY2d 354 [2000], supra), the Court observed that the requirement that an information "factually describe the elements of the crime and the particular acts of the defendant constituting its commission," thus "giv[ing] an accused fair notice and prevent[ing] double jeopardy," was not only constitutional in dimension, but also "not waivable" (id. at 363 [citations omitted])--and, therefore, by implication, jurisdictional. Thus, Watt and Casey together imply that an accusatory instrument that fails "reasonably" (People v Watt, 81 NY2d at 774) to serve its functions of providing fair notice and double jeopardy protection by specifying the time frame for the offense contains a jurisdictional defect; and, thus, a defendant does not have to raise the issue of the defect in the trial court in order to preserve it as a matter of law (see People v Alejandro, 70 NY2d 133 [1987]; cf. People v Konieczny, 2 NY3d 569, 575 [2004], supra [with respect to facts establishing commission of offense, "(a)n information is jurisdictionally sufficient if it contains allegations which would establish, 'if true, every element of the offense charged and the defendant's commission thereof' (CPL 100.40 [1] [c])"]).

At the same time, we are cognizant of the fact that the case law that has developed in the area of indictments (as opposed to informations) has stopped far short of holding all claims of a{**20 Misc 3d at 80} lack of time-frame specificity to be jurisdictional (see e.g. People v Irvine, 52 AD3d 866 [3d Dept 2008]; People v Albanese, 45 AD3d 691, 692 [2d Dept 2007]; People v Case, 29 AD3d 706 [2d Dept 2006]; People v Cosby, 222 AD2d 690, 691 [2d Dept 1995] [all noting that the defendant failed to preserve his specificity claim, and thus, by implication, holding the claim non-jurisdictional]; see generally People v Iannone, 45 NY2d 589, 598-599 [1978]). Of course, case law pertaining to the sufficiency of the allegations in indictments is not generally applicable to cases involving informations (see People v Alejandro, 70 NY2d 133, 138, 140 [1987], supra).

In the context of an information, the Court of Appeals, in People v Sedlock (8 NY3d 535 [2007], supra), has recognized that, with respect to an allegation in the accusatory instrument concerning a broad time frame, a line may be drawn as to whether the time frame alleged is "so excessive on [its] face that [it is] unreasonable" (People v Sedlock, 8 NY3d at 539, quoting People v Keindl, 68 NY2d 410, 419 [1986])--as the Court has also put it, "per se unreasonable" (People v Sedlock, 8 NY3d at 538-539, quoting People v Watt, 81 NY2d at 775)--or merely unreasonable in light of "all relevant circumstances" (People v Morris, 61 NY2d 290, 295 [1984]; see Matter of Block v Ambach, 73 NY2d 323, 333 [1989]). With respect to the former type of defect, the Court said, "dismissal should follow" (People v Morris, 61 NY2d at 295); with respect to the latter type of defect, the dismissal could only come, if warranted, after a weighing of the circumstances (id. at 295-296; see also People v Sedlock, 8 NY3d at 538-539; People v Watt, 81 NY2d 772 [1993], supra; People v Beauchamp, 74 NY2d 639, 641 [1989]; People v Keindl, 68 NY2d 410 [1986], supra).

In light of these considerations, it is our opinion that a rule classifying as jurisdictional all claims of inadequate specificity in the time frame alleged by an information would be overly broad. We further note in this context that we are cognizant of the considerations of fairness and pragmatism that underlie the notion of preservation (see generally People v Udzinski, 146 AD2d 245 [2d Dept 1989]).

While in Sedlock (which, again, dealt with an information), as in Keindl, Watt, Morris, and Beauchamp (which dealt with indictments), the Court was not addressing the distinction between jurisdictional and non-jurisdictional defects--rather, it was discussing the proper analysis of (preserved) claims that the accusatory instrument was inadequate with respect to the{**20 Misc 3d at 81} time frame alleged--the distinction drawn by the Court lends itself to application in the context at hand. In our opinion, the appropriate way to balance the mandate of People v Casey (95 NY2d 354, 363 [2000], supra) and concerns about preservation is the following. Where an information alleges a time frame that is "on its face . . . unreasonable" (People v Morris, 61 NY2d at 295), or, in other words, "per se unreasonable" (People v Sedlock, 8 NY3d at 538-539, quoting People v Watt, 81 NY2d at 775), the defect is jurisdictional and dismissal is warranted even in the absence of preservation (see e.g. People v P&N Tiffany Props., Inc., 2002 NY Slip Op 40361[U], *2 [App Term, 9th & 10th Jud Dists 2002] ["(t)he failure of the accusatory instrument to set forth the date and time of the alleged violation or, at least, the general ...


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