Opinion
No. 2003-630 S CR.
Decided April 1, 2004.
Appeal by the People from an order of the District Court, Suffolk County (J. Toomey, Jr., J.), dated February 11, 2003, granting defendant's motion to dismiss the accusatory instrument.
Order unanimously affirmed.
PRESENT: McCABE, P.J., LIFSON and SKELOS, JJ.
In an accusatory instrument sworn to on July 1, 2002, defendant was charged with constructing and/or altering his property without permits on "July 24, 2002", in violation of Islip Town Code 68-23 (A). Defendant subsequently moved to dismiss the accusatory instrument, which motion was granted, by order dated February 11, 2003, upon the determination that there is "an inconsistency in the date of the occurrence of the offense charged" and the "basis of the complainant's personal knowledge is not reflected in the information."
Pursuant to CPL 170.35 (1) (a), an information is defective within the meaning of CPL 170.30 (1) (a) when it is not sufficient on its face (CPL 100.40). Such an instrument may not be dismissed as defective, but must instead be amended where the defect or irregularity is of a kind that may be cured by amendment and where the People move to amend. Herein, the record on appeal does not indicate that the People moved in the court below to amend the accusatory instrument so as to read "July 24, 2001." Inasmuch as the information was verified on July 1, 2002, which is before the stated commission of the offense on July 24, 2002, we find that there is no reasonable cause to believe that defendant committed the offense charged and, thus, the information is facially insufficient ( see CPL 100.15; 100.40).
We note that the court below erroneously found that the information was also facially insufficient because it did not reflect the basis of the complainant's knowledge.
The Court of Appeals has clearly determined that the source or validity of a complainant's personal knowledge is a matter to be raised as an evidentiary defense at trial ( see People v. Casey, 95 NY2d 354, 360; People v. Sikorsky, 195 Misc 2d 534).