Opinion
Argued January 7, 1975
Decided January 20, 1975
Appeal from the Supreme Court in the Second Judicial Department, ALFRED F. SAMENGA, J.
Eugene Murphy, James J. McDonough and Matthew Muraskin for appellant.
William Cahn, District Attorney ( Thomas R. Hession of counsel), for respondent.
MEMORANDUM. Under CPL 100.40 (subd. 1, par. [c]) "An information * * * is sufficient on its face when * * * [the] Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." (Italics supplied.) (Compare People v. James, 4 N.Y.2d 482; see, also, Pitler, New York Criminal Practice Under the CPL, p. 283.) The Appellate Term relying on the record before it, as indeed this court is bound to do, had to hold that the owner's deposition, stating that the defendant did not have his consent to operate the car, could be considered together with the information and was sufficient to establish, by nonhearsay allegations, every element of the offense charged (Penal Law, 165.05). The defendant's claim that this deposition was not before the trial court at the time the motion to dismiss was made should be raised by a motion pursuant to CPL article 440, if the defendant be so advised.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed in a memorandum.