SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
December 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated March 29, 2011.
People v Lemma (Nicolas)
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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The order granted defendant's motion to dismiss the accusatory instrument.
ORDERED that the order is reversed, on the law, and the matter is remitted to the District Court for a new determination of defendant's motion to dismiss the accusatory instrument in accordance with the following memorandum.
The People charged defendant, in a misdemeanor information, with official misconduct (Penal Law § 195.00 ) and obstructing governmental administration in the second degree (Penal Law § 195.05). Attached to the accusatory instrument are several documents including a transcript of an examination before trial of defendant in relation to a civil action pending in federal court. Defendant moved to dismiss the accusatory instrument arguing only that the information and attached documentation failed to establish, prima facie, either of the offenses charged, making no claim that the attached documents constituted inadmissible hearsay. The District Court ruled that all of the attached documentation constituted inadmissible hearsay, reaching no other issue, and dismissed the information as facially insufficient. The People appeal and we reverse.
The District Court did not decide the motion on the grounds raised by defendant in his motion papers but solely on the ground that the documents attached to the accusatory instrument constituted inadmissible hearsay. However, because defendant had failed to object to the admissibility of the attached documentation on hearsay grounds, the issue had been waived and was not properly before the court (People v Casey, 95 NY2d 354 ; People v Netusil, 34 Misc 3d 137[A], 2011 NY Slip Op 52410[U] [App Term, 9th & 10th Jud Dists 2011]; People v Best, 31 Misc 3d 141[A], 2011 NY Slip Op 50826[U] [App Term, 9th & 10th Jud Dists 2011], lv granted 17 NY3d 951 ).
Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of the merits of defendant's motion to dismiss the accusatory instrument on the ground that it was legally insufficient.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 10, 2012
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