People v. Iftikhar

ROBERT M. RACITI, J. The defendant has been charged with (1) menacing in the second degree (Penal Law § 120.14 [1]); (2) reckless endangerment in the second degree (Penal Law § 120.20); (3) possession of a police shield, emblem, uniform or buttons (Administrative Code of City of NY § 14-107); and (4) harassment in the second degree (Penal Law § 240.26 [1]). He moves to dismiss the accusatory instrument as defective (CPL 170.30 [1] [a]; 170.35 [1] [a]). A legally sufficient misdemeanor complaint must set forth "facts of an evidentiary character" demonstrating "reasonable cause" to believe that the defendant committed the charged offense. (CPL 100.15 [3]; 100.40 [4] [b]; People v Dumas, 68 NY2d 729 [1986].) In order to convert the complaint into a triable information, the People must set forth "non-hearsay allegations [which] establish, if true, every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [c].) A legally sufficient information must contain nonhearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof. A complaint or information which fails to satisfy these requirements is jurisdictionally defective. (See, CPL 100.40 [1]; 100.15 [3]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729, supra.) The factual allegations contained in the present accusatory instrument, which is supported by the signed deposition of the complaining witness, read as follows: "Deponent states that at the above mentioned date, time and place of occurrence, he is informed by the complainant, Luis Rodriguez, that the defendant, Khurram Iftikhar, did fire a gun placing the complainant in fear of serious physical injury. Deponent further states that the actions of the defendant did also cause him to become alarmed and annoyed. Deponent further states that he did recover a full size detective shield from the defendant's right rear pocket. (108 Precinct voucher# AB813758.)" displayed the shield to Rodriguez and misrepresented himself as a police officer. Again, if the People had intended to proceed under the first section of section 14-107, they were required to allege some facts from which the court could have reasonable cause to believe that defendant "falsely represented himself" with "fraudulent design." No such facts exist in the accusatory instrument. Therefore, for all of the foregoing reasons, the accusatory instrument before the court is dismissed.