Opinion
No. 570329/18
05-10-2023
The People of the State of New York, Respondent, v. Shaheem Perry, Defendant-Appellant.
Unpublished Opinion
MOTION DECISION
PRESENT: Hagler, P.J., Tisch, Michael, JJ.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Heidi C. Cesare, J.), rendered May 7, 2018, convicting him, upon a plea of guilty, of public lewdness, and imposing sentence.
PER CURIAM.
Judgment of conviction (Heidi C. Cesare, J.), rendered May 7, 2018, affirmed.
Since defendant waived prosecution by information, the accusatory instrument is assessed under the reasonable cause standard applicable to a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because the factual allegations establish reasonable cause to believe that defendant committed a lewd act in a public place (see Penal Law § 245.00). The instrument - comprised of the misdemeanor complaint and a detailed supporting deposition - alleges that on a specified date and time, defendant exposed his "naked and erect penis" on a moving downtown number 3 train, and began masturbating. These allegations supplied defendant "with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (People v Dreyden, 15 N.Y.3d 100, 103 [2010]). The minor discrepancy between the complaint and deposition regarding the precise location of the moving train when the incident occurred was merely technical, not jurisdictional, and defendant waived his objection thereto by entering his plea of guilty (see People v Taylor, 65 N.Y.2d 1, 5 [1985]; People v Iannone, 45 N.Y.2d 589, 600-601 [1978]; People v Martin, 155 A.D.3d 589 [2017], lv denied 30 N.Y.3d 1117 [2018]; People v Johnson-McLean, 71 Misc.3d 31 [App Term, 1st Dept 2021], lv denied 37 N.Y.3d 966 [2021]; People v Vargas, 55 Misc.3d 130 [A], 2017 NY Slip Op 50387[U] [App Term, 1st Dept 2017], lv denied 29 N.Y.3d 1088 [2017]).
In light of our conclusion that the accusatory instrument was jurisdictionally sufficient, the Court of Appeals' holding in People v Hardy (35 N.Y.3d 466 [2020]) that informations and complaints cannot be amended to correct erroneous facts does not warrant a contrary result.