Criminal Court of the City of New York, Kings County
Nadely Bataille Assistant District Attorney
Defendant Duran was represented by Adrian Lesher, Esq.
Evelyn J. Laporte, J.
Defendant, ALI KETTERLES, is charged with one count each of Assault in the Third Degree (P.L. § 120.00 ); Attempted Assault in the Third Degree (P.L. § 110/120.00 ); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 ). He moves to dismiss the accusatory instrument pursuant to C.P.L. § 30.30 on the grounds that he has been denied his statutory right to a speedy trial because the People have failed to file a facially insufficient accusatory instrument. The People oppose the motion.
FACIAL SUFFICIENCY OF THE ACCUSATORY INSTRUMENTS
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (C.P.L. §§ 100.15 ; 100.40  [b]; 70.10.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. (C.P.L. § 100.40  [c].) An information which fails to satisfy these requirements is jurisdictionally defective. (C.P.L. §§ 170.30 and 170.35; People v. Alejandro, 70 N.Y.2d 133 ; People v. Dumas, 68 N.Y.2d 729 .) It is a fundamental principle that an information must allege each and every element of the offense charged. People v. Butt, 153 Misc.2d 751 (Crim. Ct. Kings Co. 1992).
The defendant was arrested on August 28, 2012 and arraigned on August 29, 2012. The original complaint charged the defendant with Assault in the Third Degree (P.L. § 120.00 ); Attempted Assault in the Third Degree (P.L. § 110/120.00 ); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 ) and reads as follows:
[Detective Steven G. Sneider of the 79th Precinct] is informed by Latosha Smith-Ketterles that, [on or about August 11, 2012 at approximately 1:30 a.m. at 685 Gates Avenue in Kings County, New York State], the defendant punched the informant numerous times about the face.
The deponent is further informed by the informant that the above described actions caused the informant to suffer bruising, swelling, pain and a laceration to the informant's lip and to be treated at a local hospital, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.
This original complaint was sworn to and signed by the deponent, Detective Sneider on August 28, 2012.
The factual information contained in the original complaint was provided by an informant, Lathosha Smith-Ketterles. Because this factual information did not come directly from the sworn deponent, it is hearsay and requires corroboration from Lathosha Smith-Ketterles by way of a supporting deposition. The People can not legally assert readiness until such time that the People have a jurisdictionally sufficient accusatory instrument which does not contain hearsay. (People v. Colon, 59 N.Y.2d 921 ).
To this date, the People never provided a supporting deposition from the informant for the original complaint. Therefore, it was never converted to a jurisdictionally sufficient accusatory instrument.
SECOND ACCUSATORY INSTRUMENT
On September 10, 2012, the People filed and served a superseding complaint (hereinafter, " SSI-1 ") charging Attempted Assault in the Third Degree (P.L. § 110/120.00 ); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 ). "SSI-1"reads as follows:
[Police Officer Jeanmarc Denis of the 79th Precinct] states that at approximately 1:37 AM, Deponent received a radio run of an assault in progress at 685 Gates Avenue, County of Kings, State of New York and arrived at the above location at approximately 01:40 AM.
Deponent further states that upon arrival, at the approximate above time and place, Deponent observed a woman, whom Deponent later learned to be Latosha Smith-Ketterles, visibly shaking, crying, upset and bleeding from the mouth, and that Latosha Smith-Ketterles ...