Legal Aid Society (
Russell Neufeld and
Donald J. Morrison of counsel), for defendant.
Richard A. Brown, District Attorney (
Anthony Como of counsel), for plaintiff.
OPINION OF THE COURT
JOSEPH A. ZAYAS, J. The defendant, an alleged sex offender, is charged with two violations of the Sexual Offender Registration Act (SORA). Specifically, he is alleged to have violated Correction Law § 168-f (2) (c) (failure to register annually as a sex offender) and Correction Law § 168-f (4) (failure to register 10 days after a change of address). Defendant moves to dismiss the charges pursuant to CPL 170.30 (1) (a) and 170.35 (1) (a) on the ground that the accusatory instrument is defective. Defendant's motion raises important questions regarding (a) the threshold factual and nonhearsay allegations required in accusatory instruments charging SORA offenses, and (b) the procedural remedy which is required or available to the court in light of CPL 170.35 (1) (a), 100.50 (1) and People v Casey (95 NY2d 354, 361-362 [2000]), where the court finds that the accusatory instrument contains hearsay pleading defects and fails to allege sufficient facts.
The SORA Offenses Charged and the Factual Allegations
Defendant is charged with having violated two provisions of the Sex Offender Registration Act, specifically two subdivisions of Correction Law § 168-f, which is entitled "Duty to register and to verify." The first count charged in the accusatory instrument, Correction Law § 168-f (2), provides, in pertinent part:
"2. For a sex offender required to register under this article on each anniversary of the sex offender's initial registration date during the period in which he is required to register under this section the following applies:
"(a) The sex offender shall mail the verification form to the [D]ivision [of Criminal Justice Services] within ten calendar days after receipt of the form. . .
"(c) If the sex offender fails to mail the signed verification form to the [D]ivision within ten calendar days after receipt of the form, he . . . shall be in violation of this section unless he proves that
he . . . has not changed his . . . residence address."
A corollary statute, Correction Law § 168-b (4), provides that the Division of Criminal Justice Services "shall mail a nonforwardable verification form to the last reported address of the person for annual verification requirements." The second count charged in the accusatory instrument, Correction Law § 168-f (4), provides, in pertinent part: "Any sex offender shall register with the [D]ivision no later than ten calendar days after any change of address." The factual portion of the accusatory instrument in the instant case alleges the following:
"The deponent is informed by PO Raymond . . . of the New York City Police Department's Sexual Offender Monitoring Unit that the Defendant, Zachary Cobb, level two sex offender, failed to mail the annual re-verification letter back to State of New York Division of Criminal Justice Services within ten calendar days of receipt . . . and . . . also failed to change [
sic] an address within ten calendar days prior to any change of address . . . since May 17, 1999. Deponent states that the defendant's residence prior to May 17, 1999 was 267 Beach 14 Street, Far Rockaway. Deponent states that the defendant stated that he had moved to Beach 13 Street and then he moved to the Bronx, and that he currently resides at 2910 Brookhaven Avenue."
The accusatory instrument is accompanied by the supporting deposition of Police Officer Raymond, who avers that the facts in the accusatory instrument are true.
Discussion
It is well established that a legally sufficient information must contain nonhearsay, factual allegations of an evidentiary character establishing, if true, every element of the offense charged and the defendant's commission thereof. (See CPL 100.40 [1]; 100.15 [3].) In People v Casey (supra, 95 NY2d at 361-362), however, the Court of Appeals drew a procedural distinction between an accusatory instrument which fails to contain nonhearsay allegations to establish every element of the offense charged—i.e., an accusatory instrument which contains hearsay pleading defects—and an accusatory instrument which fails to allege sufficient facts to establish every element of the offense charged. Although People v Casey (supra) held that an accusatory instrument which contains hearsay pleading defects is not the accusatory instrument within the time frames set forth below.
Sufficiency of the Factual Allegations
Relying upon People v Armfield (189 Misc 2d 556, 557 [Crim Ct, Richmond County 2001]) and People v Manson (173 Misc 2d 806, 815 [Crim Ct, NY County 1997]), defendant argues that the accusatory instrument is defective in this case because it fails to set forth the actual date—the 10-day expiration date—by which defendant was required to return the verification form to the Division of Criminal Justice Services (DCJS) and otherwise register his change of address. This factual allegation is required, according to defendant, because a critical element of the charged SORA offenses is that a sex offender is required to return the verification form to DCJS and otherwise register his change of address within 10 days of receipt of the form and within 10 days of his change of address, respectively. This court disagrees and finds that the People were not required to set forth in the accusatory instrument the actual date by which defendant was obliged to comply with the SORA registration requirements. To the extent that People v Armfield (supra, 189 Misc 2d at 557) and People v Manson (supra, 173 Misc 2d at 815) are to the contrary, this court declines to follow those cases. In this court's view, the absence of an allegation of the actual date by which defendant was required to register does not alone render the accusatory instrument defective. As to the first count charged in the accusatory instrument, Correction Law § 168-f (2) (c) (failure to register annually as a sex offender), the accusatory instrument alleges that Police Officer Raymond informed the deponent that defendant "failed to mail the annual re-verification letter back to State of New York Division of Criminal Justice Services within ten calendar days of receipt" (emphasis added). That is all the People were required to set forth in the accusatory instrument to establish the elements of Correction Law § 168-f (2) (c). The fair implication of those allegations is that defendant received the annual verification form and failed to return it within 10 days of receipt. The specificity of those allegations was sufficient to "give an accused notice sufficient to prepare a defense and . . . to prevent a defendant from being tried twice for the same offense." (People v Casey, supra, 95 NY2d at 360; see also People v Henderson, 92 NY2d 677, 680 [1999] ["(I)t must be emphasized that the prima facie case requirement (applicable to an information) is not the same as the burden of proof beyond a reasonable doubt required at trial"].) cases dismissing accusatory instruments as jurisdictionally defective never actually set forth what exactly is meant by the term "jurisdictional defect," this court holds that a facially insufficient accusatory instrument is jurisdictionally defective only to the extent that Criminal Court does not have jurisdiction to enter a guilty plea or commence a trial of a defendant upon an accusatory instrument which contains such nonwaivable defects. Criminal Court does have subject matter jurisdiction over the facially insufficient accusatory instrument, however, prior to trial or judgment. (See People v Casey, supra, 95 NY2d at 366 [an accusatory instrument which contains insufficient factual allegations cannot "deprive" the court of subject matter jurisdiction "because a court must both have and exercise subject matter jurisdiction in order even to rule on the sufficiency of a pleading"]; see also Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967] ["plaintiffs' failure to plead and prove that notice of entry of judgment had been served(—an essential element of the cause of action—)did not affect the (court's) competence to entertain the suit (since) . . . (t)he plaintiffs' failure to do so only affected the (court's) power to render a judgment on the merits . . . because they failed to state a cause of action"].) Because the court, having reviewed both the accusatory and factual portions of the accusatory instrument, finds that the foregoing defects, one or both of which appears likely attributable to a typographical error, are "of a kind that may be cured by amendment" (CPL 170.35 [1] [a]), or by a jurisdictionally valid superceding information (CPL 100.50 [1]), the court denies the motion to dismiss at this time and grants the People leave to move to amend or otherwise cure the defects in the second count of the accusatory instrument within the time frame allotted by CPL 30.30.[*]
The Alleged Hearsay Pleading Defects
Again relying upon People v Armfield (supra, 189 Misc 2d at 557) and People v Manson (supra, 173 Misc 2d at 815), defendant argues that the accusatory instrument is also defective in this case because it "is replete with uncorroborated hearsay assertions." fraught with hearsay and are not otherwise admissible pursuant to a recognized exception to the hearsay rule. (See People v Armfield, supra, 189 Misc 2d 556 [2001]; People v Manson, supra, 173 Misc 2d at 815; cf. People v Garcia, 163 Misc 2d 862 [Crim Ct, Bronx County 1995] [accusatory instrument charging defendant with aggravated unlicensed operation of a motor vehicle was properly converted to information where allegation in complaint that defendant's license was suspended was corroborated by filing of certified copy of DMV abstract].) Because the hearsay pleading defects in both counts of the accusatory instrument in this case are "readily curable" (People v Casey, supra, 95 NY2d at 361), however, the court denies the motion to dismiss at this time and grants the People leave to move to amend or otherwise cure the hearsay pleading defects in the accusatory instrument within the time frame allotted by CPL 30.30. In conclusion, the court finds that the second count of the accusatory instrument charging a violation of Correction Law § 168-f (4) (duty to register after a change of address) fails to allege sufficient facts to establish every element of the charged offense and contains hearsay pleading defects. The court further finds that the first count of the accusatory instrument charging a violation of Correction Law § 168-f (2) (c) (failure to register annually as a sex offender), although factually sufficient, also contains hearsay pleading defects. Inasmuch as the court finds that the foregoing defects, however, are "of a kind that may be cured by amendment" (CPL 170.35 [1] [a]), or by a jurisdictionally valid superceding information (CPL 100.50 [1]), the court denies the motion to dismiss at this time and grants the People leave to move to amend or otherwise cure the defects in both counts of the accusatory instrument within the time frame allotted by CPL 30.30. [*] Although the court recognizes that under the circumstances of this case it has discretion to require the People to cure the defects by a date certain well in advance of the CPL 30.30 expiration date, the court declines to exercise that discretion in this case inasmuch as the first count of the accusatory instrument, which the court finds factually sufficient, is still pending.