Opinion
2021-311 N CR
12-21-2023
The PEOPLE of the State of New York, Respondent, v. Victor RIVAS-MORALES, Appellant.
ORDERED that the judgments of conviction are affirmed.
In each of two felony complaints, defendant was charged with, among other things, criminal possession of a controlled substance in the seventh degree ( Penal Law § 220.03 ). The felony complaints were subsequently reduced to misdemeanor complaints. Defendant pleaded guilty to the aforementioned charges in satisfaction of both accusatory instruments.
On appeal, assigned counsel submitted an Anders brief (see Anders v California , 386 US 738 [1967] ). Upon finding the existence of at least one possible nonfrivolous issue that could be raised on appeal, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal ( 77 Misc 3d 137[A], 2022 NY Slip Op 51358[U] ). New counsel has submitted a brief contending that because defendant did not waive his right to be prosecuted by informations, the judgments of conviction should be reversed and the accusatory instruments dismissed, as each accusatory instrument failed to satisfy the requirements of an information.
A " ‘valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ " ( People v Afilal , 26 NY3d 1050, 1051 [2015], quoting People v Case , 42 NY2d 98, 99 [1977] ), the right to which is not forfeited by a guilty plea (see People v Dreyden , 15 NY3d 100, 103 [2010] ). As the record does not reveal that defendant waived prosecution by information (see People v Dumay , 23 NY3d 518, 522 [2014] ), the standards of review of the sufficiency of the accusatory instruments in this case are those applicable to informations (see CPL 100.40 [1] ; 170.65 [1], [3]; People v Jackson , 18 NY3d 738, 741 [2012] ; see also People v Kalin , 12 NY3d 225, 228 [2009] ). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and the defendant's commission thereof (see CPL 100.15 [3] ; 100.40 [1]; People v Henderson , 92 NY2d 677, 679 [1999] ; People v Alejandro , 70 NY2d 133, 136-137 [1987] ; People v Eames , 55 Misc 3d 147[A], 2017 NY Slip Op 50705[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). As defendant pleaded guilty, however, the nonhearsay requirement was forfeited (see People v Keizer , 100 NY2d 114, 121 [2003] ; People v Casey , 95 NY2d 354, 362-363 [2000] ; People v Glover , 41 Misc 3d 143[A], 2013 NY Slip Op 52059[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Upon a review of the accusatory instruments, we find that they were facially sufficient (see Dumay , 23 NY3d 518 ; Kalin , 12 NY3d 225 ; Eames , 2017 NY Slip Op 50705[U] ).
Accordingly, the judgments of conviction are affirmed.
GARGUILO, P.J., EMERSON and WALSH, JJ., concur.