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The People of the State of New York, Respondent v. Juan Vasquez

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 15, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
v.
JUAN VASQUEZ, APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered October 5, 2009.

People v Vasquez (Juan)

Decided on March 15, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 his plea of guilty, of disorderly conduct.

ORDERED that the judgment of conviction is affirmed.

Defendant, while represented by counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20) in satisfaction of a charge of falsely reporting an incident in the third degree (Penal Law § 240.50 [3] [a]). The factual portion of the accusatory instrument alleged that defendant had "filed a complaint with the police department in which [he] stated that he was the victim of a[n] assault" and that defendant had admitted that his report was false and that the reported incident had never occurred.

On appeal, defendant asserts that a person is guilty of falsely reporting an incident in the third degree (Penal Law § 240.50 [3] [a]) when he "[g]ratuitously reports to a law enforcement officer . . . the alleged occurrence of an offense or incident which did not in fact occur . . ." and that the accusatory instrument in the case at bar was facially insufficient since there was no factual allegation establishing that defendant had filed a false report "gratuitously."

At the outset, we note that an argument concerning an accusatory instrument's facial sufficiency is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]; see also People v Lucas, 11 NY3d 218, 220 [2008]) and must be reviewed in spite of his failure to raise it in the Criminal Court (see Alejandro, 70 NY2d 133).

While the accusatory instrument was denominated neither a misdemeanor complaint nor an information, defendant, contrary to his contention, expressly waived his right to be prosecuted by an information. Under the circumstances, the accusatory instrument's legal sufficiency must be evaluated as a misdemeanor complaint (cf. People v Kalin, 12 NY3d 225, 228 [2009]; People v Casey, 95 NY2d 354, 359 [2000]). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (CPL 100.15 [3]) and provides reasonable cause to believe that defendant committed the offense charged (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). "[A]n accusatory instrument must be given a reasonable, not overly technical reading" (Konieczny, 2 NY3d at 576). When the misdemeanor complaint herein is given such a reading, the "fair implication" (Casey, 95 NY2d at 360) of its averments supports, or tends to support, the charge of falsely reporting an incident in the third degree.

Defendant's contention on appeal that he was denied his statutory right to a speedy trial was forfeited by his entering a guilty plea (see People v Bruno, 73 AD3d 941 [2010]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: March 15, 2013

20130315

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