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The People of the State of New York v. Michael O'connor

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


May 9, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MICHAEL O'CONNOR,
APPELLANT.

Appeal from two judgments of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), rendered December 9, 2009.

People v O'Connor (Michael)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2011

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

Each judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree.

ORDERED that the judgments of conviction are affirmed.

Defendant was convicted, upon his guilty pleas, of two charges of criminal mischief in the fourth degree (Penal Law § 145.00 [1]). Before entering each of the aforementioned pleas, defendant waived prosecution by misdemeanor information. Defendant contends, with respect to the first judgment, that the information is facially insufficient because it is founded upon inadmissible hearsay allegations. We reject his contention. Defendant is precluded from arguing that the information is inadequate on this ground because he waived his objection to this non-jurisdictional defect when he pleaded guilty and specifically waived prosecution by misdemeanor information (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Keizer, 100 NY2d 114, 121 [2003]; People v Casey, 95 NY2d 354, 362-363 [2000]; cf. People v Thomas, 4 NY3d 143, 146 [2005]).

In regard to the second judgment, defendant asserts that the information failed to sufficiently allege that he did not have a "reasonable ground" (Penal Law § 145.00) to believe that he possessed the right to damage the window to his father's rental apartment. We reject this argument as well. In his supporting deposition, which was attached to the information, the deponent stated that he is the "owner" of the rental property and that he had not permitted defendant to damage the window to his father's unit. Thus, the factual allegations in the information, along with the building owner's supporting deposition, "allege[d] facts of an evidentiary character' (CPL 100.15 [3]) demonstrating reasonable cause' (CPL 100.40 [4] [b]) to believe defendant committed the crime charged" (People v Dreyden, 15 NY3d 100, 102-103 [2010], quoting People v Dumas, 68 NY2d 729, 731 [1986]).

Accordingly, both judgments of conviction are affirmed.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: May 09, 2011

20110509

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