Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Toko Serita, J.), rendered July 17, 2009.
People v Rumble (Barbara)
Decided on December 24, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and RIOS, JJ
The judgment convicted defendant, upon her plea of guilty, of loitering for the purpose of engaging in a prostitution offense as a class B misdemeanor.
ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
Defendant was charged with loitering for the purpose of engaging in a prostitution offense pursuant to Penal Law § 240.37 (2). Under that subsection, a person who is found to have engaged in the proscribed behavior shall be guilty of a violation. However, if that person has previously been convicted of violating Penal Law § 240.37, § 230.00, or § 230.05, he or she is guilty of a class B misdemeanor. In this case, the information did not allege that defendant had been previously convicted of violating any of those sections of the Penal Law, nor did it even indicate that defendant was being charged with a class B misdemeanor. Nevertheless, defendant pleaded guilty to loitering for the purpose of engaging in a prostitution offense as a class B misdemeanor (Penal Law § 240.37 ). On appeal, defendant argues that the accusatory instrument should be dismissed as jurisdictionally defective.
In order to be sufficient on its face, the information (and/or its supporting depositions) must allege, among other things, "facts of an evidentiary character" (CPL 100.15 ) that "establish, if true, every element of the offense charged" (CPL 100.40  [c]; see People v Dumas, 68 NY2d 729, 731 ). The People concede on appeal that the accusatory instrument was insufficient to plead the class B misdemeanor charge (see CPL 200.60; People v Jackson, 177 Misc 2d 657 [Crim Ct, NY County 1998]). However, even in the absence of any allegation of a prior conviction for violating Penal Law § 240.37, § 230.00, or § 230.05, the information alleged facts of an evidentiary character sufficient to establish, if true, that defendant was guilty of loitering for the purpose of engaging in a prostitution offense (Penal Law § 240.37 ) as a violation. Consequently, the accusatory instrument was not jurisdictionally defective.
While the accusatory instrument is sufficient, defendant's plea bargain was not, as conceded by the People. Rather than reducing defendant's misdemeanor conviction to a violation (see People v Cohen, 2003 NY Slip Op 50811[U] [App Term, 1st Dept 2003]), the result urged by the People, we reverse the judgment of conviction on the ground that defendant's guilty plea was invalid. Defendant should not have been permitted to plead guilty to a crime for which she was not charged in the accusatory instrument and which was not a lesser-included offense of the charged crime (see CPL 220.10, 220.20, 340.20 ). Accordingly, the judgment of conviction is reversed and the plea of guilty is vacated.
Since defendant committed a relatively minor offense and has completed her sentence, there would be little penological purpose to remitting the case for further proceedings. We therefore dismiss the accusatory instrument, as a matter of discretion in the interest of justice (see People v White, 26 Misc 3d 144[A], 2010 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Pesce, P.J., Weston and Rios, ...