Opinion
No. 2011–1335 N CR.
2012-12-10
The PEOPLE of the State of New York, Appellant,- v. Nicolas LEMMA, Respondent.
Present: NICOLAI, P.J., IANNACCI and LaSALLE, JJ.
Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated March 29, 2011. The order granted defendant's motion to dismiss the accusatory instrument.
ORDERED that the order is reversed, on the law, and the matter is remitted to the District Court for a new determination of defendant's motion to dismiss the accusatory instrument in accordance with the following memorandum.
The People charged defendant, in a misdemeanor information, with official misconduct (Penal Law § 195.00[2] ) and obstructing governmental administration in the second degree (Penal Law § 195.05). Attached to the accusatory instrument are several documents including a transcript of an examination before trial of defendant in relation to a civil action pending in federal court. Defendant moved to dismiss the accusatory instrument arguing only that the information and attached documentation failed to establish, prima facie, either of the offenses charged, making no claim that the attached documents constituted inadmissible hearsay. The District Court ruled that all of the attached documentation constituted inadmissible hearsay, reaching no other issue, and dismissed the information as facially insufficient. The People appeal and we reverse.
The District Court did not decide the motion on the grounds raised by defendant in his motion papers but solely on the ground that the documents attached to the accusatory instrument constituted inadmissible hearsay. However, because defendant had failed to object to the admissibility of the attached documentation on hearsay grounds, the issue had been waived and was not properly before the court (People v. Casey, 95 N.Y.2d 354 [2000];People v. Netusil, 34 Misc.3d 137[A], 2011 N.Y. Slip Op 52410[U] [App Term, 9th & 10th Jud Dists 2011]; People v. Best, 31 Misc.3d 141[A], 2011 N.Y. Slip Op 50826[U] [App Term, 9th & 10th Jud Dists 2011], lv granted17 NY3d 951 [2011] ).
Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of the merits of defendant's motion to dismiss the accusatory instrument on the ground that it was legally insufficient.