Criminal Court of the City of New York, Queens County
Adams, Esq. The Legal Aid Society Yannick Wood Assistant
District Attorney Office of the Queens District Attorney.
J. Kirschner, J.C.C.
is charged by a superseding misdemeanor information with
public lewdness (Penal Law § 245.00), endangering the
welfare of a child (Penal Law § 260.10 ) and
harassment in the second degree (Penal Law § 240.26
). By motion filed on May 17, 2018, defendant moves to
dismiss the accusatory instrument pursuant to CPL 200.70 and
30.30, claiming that the People improperly amended the
location of the offense in the superseding information and
that defendant's statutory speedy trial rights were
violated. The People oppose. After a review of the motion
papers filed by both parties and their respective arguments,
as well as other documents on file with the court, this Court
granted defendant's motion to dismiss the accusatory
instrument by decision and order dated June 6, 2018. This
expands that decision.
Background and Procedural Posture
27, 2016, defendant was charged with one count of public
lewdness (Penal Law § 245.00), after the complainant,
Erica Peralta, a 12-year-old girl, allegedly observed
defendant at the southeast intersection of Northern Boulevard
and 106th Street seated in his vehicle manipulating his penis
in an upward and downward motion within public view.
10 months later, on May 8, 2017, the People filed a
superseding information and statement of readiness that added
the charges of endangering the welfare of a child (Penal Law
§ 260.10 ) and harassment in the second degree (Penal
Law § 240.26 ). Again, the location of occurrence
identified in the superseding information was the southeast
intersection of Northern Boulevard and 106th Street. The time
of occurrence, however, had been changed to reflect a range
between 6:30 PM on June 17, 2016 to May 5, 2017.
18, 2017, after defendant objected to the statement of
readiness on the grounds that the range for the crime was
overly broad, the court directed the People to file a bill of
21, 2017, the People filed a bill of particulars along with a
statement of readiness, in which they clarified the time of
the incident as having occurred on June 17, 2016, at
approximately 6:30 PM, but once again listed the location of
the alleged incident as the southeast intersection of
Northern Boulevard and 106th Street.
August 17, 2017, a Wade/Dunaway hearing was held in
front of Judge Ushir Pandit-Durant. At no time before,
during, or after the hearing, did the People move to amend
the location of the alleged incidents.
not until April 25, 2018, after both parties announced their
readiness for trial, that the People informed defendant that
the complainant had indicated a new theory of the alleged
incident. Instead of that which was indicated in both the
superseding information and the bill of particulars, the
complainant informed the prosecution that she initially
observed defendant at 97th Street and Astoria Boulevard and
followed her in his van for ten blocks to the BP Gas Station
located at 107th Street and Astoria Boulevard. Thus, it was
at this location that the complainant alleges she observed
defendant manipulating his penis in an upward/downward
facially sufficient, an accusatory instrument must specify
the offense(s) charged and contain factual allegations of an
evidentiary nature that tend to support them (see
CPL 100.15 , ). Such factual allegations, together with
any supporting depositions or other accompanying documents,
must consist of non-hearsay allegations that provide
reasonable cause to believe that the defendant committed the
offense(s) charged, which if true, establish each and every
element of those charges (see CPL 100.40 ;
People v Henderson, 92 N.Y.2d 677, 679 ).
Sufficiency of an accusatory instrument is a non-waivable
jurisdictional defect that requires dismissal if not
satisfied (see People v Alejandro, 70 N.Y.2d 133');">70 N.Y.2d 133
a facially sufficient accusatory instrument, or information,
must provide reasonable cause that the defendant committed
the charged offenses, and establish a prima facie case
against him. Not surprisingly, it is the People who bear the
burden of satisfying these requirements by doing so in the
text of the information (see People v Jones, 9
N.Y.3d 259, 261 ). To be sure, this requirement is
neither synonymous with the People's burden at trial,
which requires proof beyond a reasonable doubt, nor rises to
the level of evidence sufficient to survive a motion for a
trial order of dismissal (People v Kalin, 12 N.Y.3d
225, 230 ).
reviewing and evaluating whether the pleaded allegations
establish reasonable cause to believe that a person has
committed an offense, the court must do so in the light most
favorable to the People (see People v Williams, 84
N.Y.2d 925 ; People v Contes, 60 N.Y.2d 620');">60 N.Y.2d 620
). Moreover, the information "should be given a
fair and not overly restrictive or technical reading"
(People v Casey, 95 N.Y.2d 354, 360 ).
Reasonable cause exists when "evidence or information
which appears reliable discloses facts or circumstances... of
such weight and persuasiveness as to convince a ...