SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
March 9, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (David Godosky, J.), rendered April 6, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted tampering with physical evidence.
People v Bynes (David)
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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with attempted tampering with physical evidence (Penal Law §§ 110.00, 215.40 ) and an additional offense. He pleaded guilty to attempted tampering with physical evidence in full satisfaction of the accusatory instrument. He now challenges the facial sufficiency of the count of the accusatory instrument charging him with that offense.
At the outset, we note that defendant's arguments concerning the accusatory instrument's facial sufficiency are jurisdictional (see People v Alejandro, 70 NY2d 133 ). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v Konieczny, 2 NY3d 569, 573 ; see also People v Lucas, 11 NY3d 218, 220 ) and must be reviewed in spite of his failure to raise it in the Criminal Court (see People v Kalin, 12 NY3d 225, 229 ; People v Alejandro, 70 NY2d 133).
The accusatory instrument was not denominated either a misdemeanor complaint or an information, and defendant expressly waived his right to prosecution by information. Under these circumstances, the accusatory instrument should be evaluated as a misdemeanor complaint (cf. People v Kalin, 12 NY3d 225, 228 ; People v Casey, 95 NY2d 354, 359 ). In any event, even if we accept defendant's contention that the accusatory instrument must be evaluated as an information, it was facially sufficient. The factual allegations "provide reasonable cause to believe" and "establish, if true" (CPL 100.40  [b], [c]) that defendant committed the offense of attempted tampering with physical evidence (Penal Law §§ 110.00, 215.40 ; see People v Roman, 23 Misc 3d 56 [App Term, 1st Dept 2009]; People v Mercedes, 194 Misc 2d 731, 736 [Crim Ct, NY County 2003]). Moreover, given a fair and not overly technical reading, the factual allegations contained therein were sufficiently detailed to enable defendant to prepare an adequate defense and to invoke the protection of double jeopardy in the event that he was acquitted of this charge but later subject to further prosecution (see People v Dreyden, 15 NY3d 100, 103 ; see also People v Konieczny, 2 NY3d 569; People v Casey, 95 NY2d at 360).
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: March 09, 2011
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