SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Consolidated appeals from (1) a judgment of the Justice Court of the Town of Cortlandt, Westchester County (Daniel A. McCarthy, J.), rendered July 7, 2006, and (2) an amended judgment of the same court (Daniel F. McCarthy, J.) rendered January 25, 2008.
People v Davis (Denise)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 20, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
The judgment convicted defendant, upon her plea of guilty, of resisting arrest, and imposed a sentence of probation. The amended judgment revoked the sentence of probation, upon a finding, after a hearing, that defendant had violated conditions thereof, and resentenced her to a term of six months' imprisonment.
ORDERED that the judgment of conviction and the amended judgment of conviction are reversed, on the law, and the accusatory instrument is dismissed.
Defendant was charged in two separate accusatory instruments with resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.20). She pleaded guilty to resisting arrest, and the accusatory instrument charging disorderly conduct was dismissed as satisfied. This court previously held the appeal in abeyance after finding the Anders brief filed by prior counsel inadequate (People v Davis, 25 Misc 3d 133[A], 2009 NY Slip Op 52183[U] [App Term, 9th & 10th Jud Dists 2009]).
Defendant argues, among other things, that the accusatory instrument charging resisting arrest is facially insufficient. In assessing the facial sufficiency of the instrument, we do not take into consideration the two supporting depositions referred to by the People in their brief, because these depositions are not in the Justice Court files and are not referred to in the accusatory instruments as contained in the files, and because there is no indication on the record before this court that they were filed (see People v Grabinski, 189 Misc 2d 307, 308 [App Term, 9th & 10th Jud Dists 2001]; see also People v Thomas, 4 NY3d 143, 146  ["an information must set forth the required . . . evidentiary allegations within the four corners of the instrument itself or in annexed supporting depositions" (internal quotation marks omitted)]; see generally People v Shipp, 35 NY2d 982 ). We also do not take into consideration the accusatory instrument charging disorderly conduct (see People v Kass, 20 Misc 3d 131[A], 2008 NY Slip Op 51431[U] [App Term, 9th & 10th Jud Dists 2008]; People v Harper, 2003 NY Slip Op 51350[U] [App Term, 9th & 10th Jud Dists 2003]; see also People v Thomas, 4 NY3d at 146).
We find that the accusatory instrument charging resisting arrest, whether evaluated as an information or as a misdemeanor complaint, is facially insufficient, because it does not provide allegations that "establish, if true" (CPL 100.40  [c] [applicable to informations]; see also CPL 100.15 ), or "provide reasonable cause to believe" (CPL 100.40  [b] [applicable to informations]; CPL 100.40  [b] [applicable to misdemeanor complaints]) that the arrest that defendant allegedly resisted was "authorized" (Penal Law § 205.30; see People v Alejandro, 70 NY2d 133, 135-136 ; People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2008]; People v Lucas, 15 Misc 3d 139[A], 2007 NY Slip Op 50943[U] [App Term, 9th & 10th Jud Dists 2007]; see also People v Jones, 9 NY3d 259, 263 ). The fact that the accusatory instrument specifies that the arrest was made for disorderly conduct does not cure the defect (see People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U]). Furthermore, this defect in the accusatory instrument is jurisdictional (see People v Dreyden, 15 NY3d 100, 102-103 ; People v Kalin, 12 NY3d 225, 228-229 ; People v Alejandro, 70 NY2d at 136; People v Dumas, 68 NY2d 729 ). Consequently, defendant's claim did not require preservation (see People v Alejandro, 70 NY2d at 135) and was not forfeited by her guilty plea (see People v Dreyden, 15 NY3d at 102-103; People v Konieczny, 2 NY3d 569, 573 ; cf. People v Kalin, 12 NY3d at 232). Moreover, even if defendant's purported waiver of her right to appeal was valid (but see People v Cuthbertson, 27 Misc 3d 138[A], 2010 NY Slip Op 50892[U] [App Term, 9th & 10th Jud Dists 2010]), the waiver would not bar her claim because the claim is jurisdictional (see People v Nieves, 73 AD3d 1087 ).
Accordingly, we reverse the judgment of conviction and dismiss the accusatory instrument charging resisting arrest. Since the accusatory instrument charging disorderly conduct was dismissed in the Justice Court as satisfied by defendant's plea of guilty to resisting arrest, and since defendant has fully served her sentence for resisting arrest, we do not reinstate the accusatory instrument charging disorderly conduct (see People v Dreyden, 15 NY3d at 104). In light of this result, we reach no other issue with respect to the judgment of conviction.
As for the amended judgment of conviction, a resentence imposed upon an adjudication that a defendant has violated the conditions of her probation is a sentence "for the original crime" (People v Armstrong, 60 AD3d 779  [citations omitted]), not for the probation violation. Hence, once the conviction of the original offense has been reversed, there is no predicate for the resentence. Furthermore, this court does not have the option of vacating the resentence but affirming the violation adjudication, since a violation adjudication is not a judgment of conviction. Accordingly, we reverse the amended judgment of conviction.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 20, 2011
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