Opinion
2013-510 P CR
02-17-2015
The People of the State of New York, Respondent, v. Joanne DiDonato, Appellant.
PRESENT: : , IANNACCI and GARGUILO, JJ.
Appeal from a judgment of the Justice Court of the Town of Carmel, Putnam County (Thomas J. Jacobellis, J.), rendered February 5, 2013. The judgment convicted defendant, after a nonjury trial, of trespass.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
After a nonjury trial, defendant was convicted of trespass (Penal Law § 140.05).
An information, together with any supporting deposition accompanying it or filed in connection therewith (CPL 100.20), must allege, among other things, facts of an evidentiary nature establishing, if true, each element of the offense charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Jones, 9 NY3d 259, 261 [2007]). The failure to comply with these requirements is a nonwaivable jurisdictional defect (see People v Dreyden, 15 NY3d 100, 103 [2010]). The factual allegations of the information charging defendant with trespass state, in pertinent part, that defendant "knowingly entered or remained unlawfully in or upon the premises of Kristen Dyckman located at 1 Highland Rd. in the Town of Carmel, Putnam County, State of New York." Although the complainant had given a "signed statement" to the police, there is nothing contained in the record to show that there was a supporting deposition accompanying or filed in connection with the information (CPL 100.20). Even if the signed statement be deemed a supporting deposition, the factual allegations set forth therein further indicate that defendant had an "easement over [the complainant's] driveway."
We find the factual allegation that defendant "knowingly entered or remained unlawfully in or upon the premises" to be conclusory and not evidentiary in nature (see People v Santulli, 28 Misc 3d 136[A], 2010 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2010]; People v Curiale, 20 Misc 3d 133[A], 2008 NY Slip Op 51465[U] [App Term, 9th & 10th Jud Dists 2008]), and that it neither suffices to give defendant "notice sufficient to prepare a defense . . . [nor is] adequately detailed to prevent . . . defendant from being tried twice for the same offense" (People v Casey, 95 NY2d 354, 360 [2000]; see Kalin, at 230 [2009]).
Under the circumstances, we pass upon no other issue.
Accordingly, the judgment of conviction is reversed and the information dismissed.
Tolbert, J.P., Iannacci and Garguilo, JJ., concur.
Decision Date: February 17, 2015