Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), rendered April 23, 2009.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: RIOS, J.P., ALIOTTA and SOLOMON, JJ
The judgment convicted defendant, upon a jury verdict, of failure to disclose the origin of a recording in the second degree.
ORDERED that the judgment of conviction is reversed, on the law, and the information is dismissed.
Defendant was charged with, among other things, failure to disclose the origin of a recording in the second degree (Penal Law § 235.70). The factual portion of the information contained allegations that the officer had recovered "408 counterfeit DVDs and 96 counterfeit CDs," that they fail to disclose the "actual name and address of the manufacturer of the packaging" and "that [blank] in plastic wrap with a photocopy of real label." The accompanying supporting depositions elaborate on the omission of the actual name and address of the manufacturer. After a jury trial, defendant was found guilty of failing to disclose the origin of a recording in the second degree.
On appeal, defendant contends, among other things, that the information charging him with the failure to disclose the origin of a recording in the second degree was facially insufficient. In order to be facially sufficient, an information, together with any supporting deposition "accompanying or filed in connection with an information" (CPL 100.20), must allege, among other things, non-hearsay facts of an evidentiary nature establishing, if true, each element of the offense charged and the 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 ; People v Allen, 92 NY2d 378, 385 ; People v Dumas, 68 NY2d 729, 731 ). The failure to comply with the foregoing requirements is a non-waivable jurisdictional defect (see People v Alejandro, 70 NY3d 133 ), with the exception of a claim of hearsay, which is waived if it is not timely raised by a pretrial motion (see People v Casey, 95 NY2d 354 ). The factual allegations in an information must give a defendant sufficient notice to prepare a defense and prevent him from being tried twice (see e.g. People v Dreyden, 15 NY3d 100, 103 ; Casey, 95 NY2d at 360). Conclusory allegations alone are insufficient and render the accusatory instrument defective (see Dumas, 68 NY2d 729).
A person is guilty of failure to disclose the origin of a recording in the second degree when the person "knowingly advertises or offers for sale, resale, or rental, or sells, resells or rents, or possesses for such purposes, a recording the cover, box, jacket or label [of which] does not clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist" (Penal Law § 275.35).
The factual allegations, even if given a "reasonable, not overly
technical reading" (People v Konieczny, 2 NY3d 569, 576 ), do
not "establish, if true" (CPL 100.40  [c]), the elements of the
offense that defendant knowingly sold, resold or rented the items, or
that he possessed these items for such purposes (see People v Rose, 34
Misc 3d 686 [Crim Ct, NY County 2011]; cf. People v Murphy, 31 Misc 3d
141[A], 2011 NY Slip Op 50827[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). We note that the factual allegations provide no
indication that the DVDs or CDs recovered consisted of multiple copies of the same movies or albums, or that they were displayed in such
a manner so as to indicate that they were for sale (see e.g. Murphy, 31 Misc 3d 141[A], 2011 NY Slip Op 50827[U]). Consequently, we cannot
infer from the factual allegations that defendant possessed DVDs or CDs for the purpose of selling, reselling or renting them in violation of Penal
Law § 275.35. Thus,
the information charging defendant with failure to disclose the origin
of a recording in the second degree is jurisdictionally defective.
Accordingly, the judgment of conviction is reversed and the ...