SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
July 7, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
Appeal from a judgment of the Justice Court of the Village of Amityville, Suffolk County (Elizabeth Neimi, J.), rendered March 2, 2010.
People v . Pampalone (Vito)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2011
PRESENT:TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon his plea of guilty, of permitting the use of premises contrary to the use permitted by the certificate of occupancy.
ORDERED that the judgment of conviction is reversed, on the law, the information is dismissed and the fine, if paid, is remitted.
Pursuant to a negotiated plea agreement, defendant Vito Pampalone pleaded guilty to permitting the use of premises contrary to the use permitted by the certificate of occupancy (Code of the Village of Amityville § 50-1). The court imposed a fine of $2,500.
An information, together with any supporting deposition accompanying or filed in connection therewith (CPL 100.20), must allege, among other things, facts of an evidentiary nature establishing, if true, each element of the offense charged and defendant's commission thereof (CPL 100.15 ; 100.40 ; see People v Kalin, 12 NY3d 225, 228-229 ; People v Jones, 9 NY3d 259, 261 ). The failure to comply with these requirements is a non-waivable jurisdictional defect (see People v Alejandro, 70 NY2d 133 ). Upon a review of the accusatory instrument, we find that it is jurisdictionally defective since there are no factual allegations contained therein which establish, prima facie, defendant's commission of the alleged offense (CPL 100.15 ; 100.40 ). The information and the supporting deposition had originally named another as the one who committed the offense. While the caption of the accusatory instrument was subsequently amended to name Vito Pampalone as defendant, that amendment did not affect the allegations contained in the information and supporting deposition, which continued to name another as the offending party. Consequently, the judgment of conviction is reversed, the information dismissed and the fine, if paid, remitted.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: July 07, 2011
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