New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
June 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Justice Court of the Village of Spring Valley, Rockland County (Susan M. Smith, J.), rendered June 27, 2007.
People v Salaam (Derrick)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2012
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in an information with assault in the third degree (Penal Law § 120.00 ) in that, on March 20, 2005, defendant had punched the complainant in her face. In August 2005, a superseding information was filed charging defendant with assault in the third degree in that, on March 13, 2005, defendant had punched the complainant in her right eye. The bottom of the superseding information contains a paragraph stating that any false statements are punishable as a class A misdemeanor pursuant to Penal Law § 210.45, following which the complainant's signature is set forth.
During the jury trial, the complainant testified that she had not read the superseding information before she signed it and had assumed that only the date had been changed. Following the trial, the jury found defendant guilty of assault in the third degree. Defendant subsequently moved, pursuant to CPL 330.30 (2), to set aside the verdict on the ground that one of the jurors had not truthfully answered questions during voir dire, and had improperly used her personal experience to influence the other jurors. A hearing was held, after which the Justice Court denied defendant's motion, finding that no substantial right of defendant had been violated.
On appeal, defendant contends that the superseding information was jurisdictionally defective since the trial testimony showed that it was not verified, as the complainant had testified that she had not read the superseding information before she signed it. Even if it be assumed that the superseding information was not verified and was, therefore, null and void, the dismissal of the original information as a result of an unverified filing of the superseding information was necessarily a nullity as well (see People v Frederick, 14 NY3d 913, 916 ). Since the only significant difference between the original information and the superseding information is the date of the occurrence - - and such an error is a technical, not a jurisdictional, defect (see People v Dudley, 28 AD3d 1182 ) - - the original information would have conferred jurisdiction upon the Justice Court to adjudicate the offense charged therein.
We further find, upon a review of the record, that the Justice Court properly denied defendant's CPL 330.30 (2) motion to set aside the verdict based on juror misconduct (see People v Clark, 81 NY2d 913, 914 ; People v Ceresoli, 222 AD2d 1096 , affd 88 NY2d 925 ). Defendant's remaining contentions are either unpreserved for appellate review or lack merit.Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 13, 2012
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