Second, Eleventh and Thirteenth JudicIal Districts Appeals released on: November 13, 2020
By: Weston, J.P., Elliot, Siegal, JJ. New York City Legal Aid Society (Lorca Morello of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, and Jie Gao of counsel), for respondent. 2018-826 Q CR. PEOPLE v. CAMPBELL, PERRY — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle Johnson, J.), rendered January 10, 2018. The judgment convicted defendant, upon his plea of guilty, of bail jumping in the third degree, and imposed sentence. The appeal brings up for review an order of that court (Ushir Pandit-Durant, J.) dated May 9, 2017 denying defendant’s motion to dismiss the accusatory instrument in the interest of justice and the branch of a separate motion by defendant seeking to dismiss the accusatory instrument on the ground of facial insufficiency. ORDERED that the judgment of conviction is affirmed. Defendant was charged with bail jumping in the third degree (Penal Law §215.55). The factual portion of the accusatory instrument, executed by an employee of the District Attorney’s Office, alleges, based upon an examination of a printout from the “CRIMS Computer System,” which was annexed to the instrument and which contained the procedural history of the underlying charge against defendant, that defendant was released from custody by court order and allowed to remain at liberty upon the condition that he appear personally in court on July 29, 2015 in connection with that case, and that he failed to appear on the required date or within 30 days thereafter. Defendant moved to dismiss the accusatory instrument in the interest of justice (see CPL 170.30 [1] [g]; 170.40) and separately, insofar as is relevant to this appeal, to dismiss the accusatory instrument as facially insufficient. The Criminal Court (Ushir Pandit-Durant, J.) denied both motions. Defendant appeals from a judgment convicting him, upon his plea of guilty, of bail jumping in the third degree, arguing that the accusatory instrument should have been dismissed. Defendant’s arguments concerning the facial sufficiency of the accusatory instrument are jurisdictional (see People v. Alejandro, 70 NY2d 133 [1987]) and, therefore, were not forfeited upon his plea of guilty (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 573 [2004]). On the other hand, defendant forfeited his right to appellate review of the denial of his motion to dismiss the accusatory instrument in the interest of justice by pleading guilty (see People v. Kontos, 71 AD3d 507 [2010], lv denied 14 NY3d 887, 889 [2010]; People v. Arvelo, 16 AD3d 128 [2005], lv denied 4 NY3d 883 [2005]; People v. Gerber, 182 AD2d 252 [1995]; People v. Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50222[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). As defendant expressly waived the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 523 [2014]; see also CPL 100.15, 100.40 [4]; People v. Dumas, 68 NY2d 729, 731 [1986]). While the law does not require that an accusatory instrument contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see People v. Konieczny, 2 NY3d 569, 575 [2004]). Contrary to defendant’s argument, the accusatory instrument sufficiently alleged a necessary element of bail jumping in the third degree (see People v. McLean, 168 Misc 2d 140 [App Term, 2d Dept, 9th & 10th Jud Dists 1996]), that he failed to appear within 30 days after a specified date, here July 29, 2015 (see People v. Martinez, 45 Misc 3d 134[A], 2014 NY Slip Op 51725[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Since the accusatory instrument alleged facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]), “set forth facts that establish[ed] reasonable cause to believe that [] defendant committed the charged offense” (Dumay, 23 NY3d at 522; see CPL 100.40 [4]), and provided defendant “with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (Dumay, 23 NY3d at 524 [internal quotation marks omitted]), it was facially sufficient. Accordingly, the judgment of conviction is affirmed. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur. November 6, 2020
