Motion to dismiss_defective_info-J JOHN SEBASTIAN ATTORNEY

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J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY J JOHN SEBASTIAN ATTORNEY

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Motion to dismiss_defective_info-J JOHN SEBASTIAN ATTORNEY

  1. 1. BUFFALO CITY COURT COUNTY OF ERIE STATE OF NEW YORK -------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK AFFIRMATION IN SUPPORT OF MOTION TO DISMISS -against- Case # 13M3522 CONFIDENTIAL, Accused, -------------------------------------------------------------------X J. John Sebastian, an attorney admitted to practice in the State of New York, who is the attorney of record for the accused CONFIDENTIAL,, hereby affirms under penalties of perjury, pursuant to CPLR 2106, that the facts set forth herein are true: 1. I am the attorney attorney for the accused herein. I make this affirmation in support of the within motion. 2. The sources of my information and belief are a review of the court file, representations by The People, and my own investigation. SUMMARY OF ARGUMENT The informations are facially defective which must lead to the dismissal of the charges. This facial deficiency is jurisdictional, non-waivable, and can be raised at any time. Moreover, the Peoples announcement of “readiness” was illusory because they were not in fact ready and therefore the charges must be dismissed pursuant to CPL § 30.30. ARGUMENT POINT I THE ACCUSATORY INSTRUMENT HEREIN IS DEFECTIVE IN THAT IT STATES IT IS BASED “UPON INFORMATION AND BELEF “BUT FAILS TO PROVIDE THE SOURCE OF SUCH “INFORMATION AND BELIEF” 3. The accusatory instrument herein is a signed statement by the complainant made not of her
  2. 2. own knowledge but “on information and belief”(Ex “A”). 4. The accusatory instrument also indicates “No[X]” to the question of “Supporting Depositions(s) Attached?”(Ex. “A”) 5. Since the “MISDEMEANOR/VIOLATION INFORMATION” herein is not based on complainant's “own knowledge” they are NOT , “non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b),(2) and therefore is a fatally defective instrument and must be dismissed. ALTERNATIVELY THE CRIMINAL MISCHIEF 4TH DEGREE PORTION OF THE INFORMATION IS DEFECTIVE "An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law § 100.15(3); People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986). Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b),(2). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1980). People v. Guzman, 2004 NY Slip Op 24486, 3 (N.Y. Misc. 2004) 3. A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he: A.  Intentionally damages property of another person[.] PL § 145.00(1).    4. Here, the information alleges in relevant part: that the “DID INTENTIONALLY DAMAGE THE PROPERTY OF CONFIDENTIAL, IN THAT THE DEFENDANT DID DAMAGE A FOYER RUG BY THROWING GARBAGE ON THE RUG...”(emphasis added) 5. The information herein does not contain non-hearsay allegations which, if true, establish  every element of the offense charged. See CPL § 100.40(1)(b),(2) 6. Instead the people rely on the conclusive allegation of “....THROWING GARBAGE ON THE RUG....”  to somehow satisfy the element of “intentionally damag[ing] property”.
  3. 3. 7. As if to say every person who litters on anther’s property holds the requisite intent to also damage said property and commit the crime of Criminal Mischief. ALTERNATIVELY THE CRIMINAL HARASSMENT 2ND DEGREE PORTION OF THE INFORMATION IS DEFECTIVE 8. PL § 240.26 (3) reads as follows: [*3] 1. A person is guilty of harassment in the second degree when, with intent to harass, annoy, or alarm another person: 2. (3) He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. 9. The Court of Appeals has repeatedly held that to establish that the defendant violated PL § 240.26 (3) there must be evidence that the defendant's conduct was not an isolated incident. (emphasis added) People v Wood, 59 NY2d 811 (1983); People v Valerio, 60 NY2d 669 (1983); See also, People v Hogan, 172 Misc 2d 279 (Crim Ct, Kings County, 1997) order aff'd. 181 Misc 2d 748 (1998).The term "a course of conduct" has been defined as a "pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose." People v Payton, 161 Misc 2d 170 (Crim. Ct., Kings County 1994. Bruno, J). 10. See also, People v Barrow 2008 NY Slip Op 52571 where the Court held: However, a single outburst, no matter how abusive, is not criminal under the harassment statute. (citing) People v Hogan, 172 Misc 2d 279 (Crim Ct, Kings County 1997) 11. Herein, the accusatory instrument alleges in relevant part “ I ELIZABETH SALVATORI accuse the above named defendant on or a bout MARCH 7, 2013 AT 12;30 PM.....” it continues “...THAT THE DEFENDANT DID BANG ON CONFIDENTIAL,APARTMENT DOOR AND
  4. 4. DID YELL OBSENITIES WHEN CHILDREN OPENED THE DOOR . THE DEFENDANT DID ALSO WRITE AN ABUSIVE AND ANNOYING LETTER TO ELIZABETH SALVATORI AND DID CALL HER TWO CHILDREN LITTLE ASSES AND RAT BITCHES . THE DEFENDANT DID SCARE THE CHILDREN AND DID THROW GARBAGE ON THE FOYER RUG CAUSING DAMAGE TO SAME . SAID ACTIONS SERVING NO LEGITIMATE PURPOSE.” 12. Most importantly, the People allege this incident took place on “MARCH 7 AT 12:30 PM”. Since the accusatory instrument is void of any other dates or times, accepting the facts alleged as true, one can only conclude the act alleged was a “single outburst” and not a “pattern of conduct ….over a period of time” People v Barrow 2008 NY Slip Op 52571 POINT II THE PEOPLE WERE NEVER READY FOR TRIAL DESPITE THEIR ANNOUNCEMENT OF READY. THIS ACTION MUST BE DISMISSED PURSUANT TO CPL § 30.30 13. The people must do much more than merely announce trial readiness in order to conform to the requirements of CPL § 30.30. Readiness turns on a 2 prong test: (1) there must be a communication of readiness by the People which appears on the trial court's record, and (2) the prosecutor must make his statement of readiness when the People are in fact ready to proceed. See, People v. Kendzia, 64 N.Y.2d 331, 476 N.E.2d 287, 486 N.Y.S.2d 888 (1985). Here the people have failed in the second prong of Kendzia , in that they never had before them a facially sufficient information. Despite announcing readiness, the people were never in fact ready because the “misdemeanor/violation information” was jurisdictionally defective. Consequently, defendant’s right to a speedy trial has been violated, and under CPL § 30.30 and both charges must be dismissed.
  5. 5. WHEREFORE, your deponent respectfully requests this Court to grant the relief sought herein and such other and further relief as to this Court may seem just and proper. Dated: Buffalo, New York June ___ 2013 Respectfully Submitted, s/ ____________________________ J John Sebastian Esq. 70 Niagara Street Buffalo NY 14202 716-362-1146
  6. 6. WHEREFORE, your deponent respectfully requests this Court to grant the relief sought herein and such other and further relief as to this Court may seem just and proper. Dated: Buffalo, New York June ___ 2013 Respectfully Submitted, s/ ____________________________ J John Sebastian Esq. 70 Niagara Street Buffalo NY 14202 716-362-1146

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