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The People of the State of New York v. Vincent Lovallo

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


February 16, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
APPELLANT,
v.
VINCENT LOVALLO, RESPONDENT.

Appeal from an order of the Justice Court of the Town of Yorktown, Westchester County (William C. Gerstenzang, J.), dated September 14, 2009.

People v Lovallo (Vincent)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2011

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The order granted defendant's motion to dismiss the accusatory instrument.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated, and the matter is remitted to the Justice Court for all further proceedings thereon.

Defendant was charged in an information with five counts of falsely reporting an incident in the third degree (Penal Law § 240.50 [4]). The information alleged that defendant had made five telephone calls to the Statewide Central Register of Child Abuse and Maltreatment (the Register) in which he had falsely accused each of five parents, respectively, of having abused or mistreated his or her child.

The Justice Court granted defendant's motion to dismiss the information as facially insufficient for a failure, in effect, to provide factual allegations that "establish, if true, . . . the defendant's commission" (CPL 100.40 [1] [c]) of the offenses. The Justice Court found that the factual allegations were adequate to establish that the complaint calls had been made from defendant's home telephone, but not to establish that it was defendant himself who had made the calls.

Defendant argues now, as he did in the Justice Court, that certain written statement by Register employees -- statements effectively linking the complaint calls to defendant's home telephone number -- were not properly verified and are consequently not properly part of the information. We note that, although the Justice Court's treatment of the verification issue in its decision did not "adversely affect[ ]" (CPL 470.15 [1]) the People, CPL 470.15 (1) does not preclude us from reaching this issue, since the question of what documents are properly part of the information is "unavoidable" (People v Myers, 303 AD2d 139, 140 [2003]) if this court is to reach "a sound legal conclusion" (id.) about the facial sufficiency of the information (cf. People v LaFontaine, 92 NY2d 470 [1998]; People v Bell, 9 AD3d 492, 494 [2004]). As for the merits of defendant's verification argument, the employee statements in question are adequately verified pursuant to CPL 100.30 (1) (b), since each statement establishes that the employees' signatures were made under penalty of perjury before at least one investigator.

Defendant also argues that the information is facially insufficient because its factual allegations do not "provide reasonable cause to believe" (CPL 100.40 [1] [b]) and "establish, if true" (CPL 100.40 [1] [c]), that it was he who made the telephone calls at issue. As a preliminary matter, we address defendant's further arguments pertaining to what materials are properly part of the accusatory instrument. The People submitted, apparently purportedly as part of the accusatory instrument, two notices pursuant to CPL 710.30 stating the People's intent to offer at trial defendant's alleged statements to a senior social caseworker. We agree with defendant that these notices are not properly part of the accusatory instrument. The affidavits of the senior social caseworker setting forth what defendant allegedly told her are, however, properly part of the information. In addition, the People submitted an audiotape and transcript of a police interview of defendant, as well as a transcript of a second police interview of defendant. The People have conceded that the transcripts are inaccurate. We assume for the purposes of our analysis here, although we do not reach the issues, that the audiotape and transcripts are not part of the accusatory instrument.

We nevertheless reject defendant's facial insufficiency argument. The factual allegations of the information are adequate to meet, by means of circumstantial proof, both the "reasonable cause" requirement of CPL 100.40 (1) (b) and the "prima facie case requirement" (People v Kalin, 12 NY3d 225, 229 [2009] [internal quotation marks and citation omitted]) set forth in CPL 100.40 (1) (c).

Accordingly, the order is reversed, defendant's motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated, and the matter is remitted to the Justice Court for all further proceedings thereon.

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision Date:February 16, 2011

20110216

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