Opinion
No. 23040040
07-07-2023
The People of the State of New York v. Cody F. Shurgot, Defendant.
Sandra Doorley, District Attorney, Monroe County (James Nguyen of Counsel), for plaintiff. The Schiano Law Office, (Christopher A Schiano of Counsel), for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (James Nguyen of Counsel), for plaintiff.
The Schiano Law Office, (Christopher A Schiano of Counsel), for defendant.
Thomas J. DiSalvo, J.
History of the Case.
The defendant was charged with assault in the third degree, P.L. § 120.00 (1), relative to an incident that allegedly occurred on March 24, 2023. He was arraigned with counsel on April 19, 2023. Subsequently defense counsel requested an adjournment to permit him to file motions. At which time the matter was adjourned to May 17, 2023 for argument of motions. Said motions were filed with the court on May 4, 2023. The People filed an Responding Affirmation with the court on May 16, 2023. On the return date defense counsel requested that the accusatory herein be dismissed as being insufficient or in the alternative that the court conduct a probable cause hearing.
Facts of the Case.
The complaint signed by the arresting Webster Police Officer alleged that
"On the above date and approximate time, the defendant, Cody Shurgot (XX/XX/1992), was in a physical altercation with Albert Jones, Jr. (XX/XX/1993) in a parking lot outside Hooligans Eastside Grill, located at 809 Ridge Road, Webster, NY 14580. The defendant struck Albert Jones Jr. in the face causing facial injuries which required hospitalization and stitches."
Attached to the complaint is a supporting deposition sworn to by the said Albert Jones, Jr.. That supporting deposition states in pertinent part as follows:
"On 3/23/23 at abut 7:30 pm, I went to Hooligans to meet my friend Bet who is a bartender. I was watching basketball around 8:30 pm at the bar. There was a group of people next to me that I started to talk to about the game. I went outside to call my cousin to talk to [sic] the game and make another phone call. The next thing I remember is waking up in the ambulance and talking to the police. I remember them asking if I wanted to press charges against someone. At the time I was very confused and didn't know what had happened. I then got taken to Strong Hospital in the ambulance. There I had to get a cat-scan and had to get stitches below my nose. They told me that I would have a nasal injury that will probably need surgery. I would like to press charges against the person that did this to me. I would also like a stay away Order of Protection against the person."
Issue Presented.
Is the information consisting of the complaint and the supporting deposition facially sufficient pursuant to CPL 100.40 (1)?
Legal Analysis.
CPL § 100.40 (1) (c) requires that 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." The officer that executed the complaint did not allege that he witnessed the event in question. Instead the allegation made in his complaint were made "... upon information and belief, with the source of complainant's information and the grounds for belief being the facts contained in the attached SUPPORTING DEPOSITION(S) of: Albert Jones Jr." In a case not too dissimilar to the fact herein this court held that
"That section [CPL 100.40 (1) (c)] must be read in conjunction with C.P.L. § 100.15 (3), which in reference to an information or misdemeanor complaint states in relevant part that 'The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.... the factual allegations may be based either upon personal knowledge of the complainant or upon information and belief.' The complaint signed by the police officer in and of itself does not meet either standard. The officer did not personally observe any of the events in question. Nor does the fact that the allegations were said to be made upon information and belief insure the sufficiency of the information, because the officer does not state the source of said information and belief. (See People v. Singh, 18 N.Y.S.3d 319, [Webster Just. Ct. 2015)]; People v. Colburn, 48 Misc.3d [971], 8 N.Y.S.3d 898 [Webster Just. Ct. 2015]; People v. Malta, 19 Misc.3d 1142 (A), 2008 NY Slip Op 51144 [U] [Webster Justice Ct.]; People v. Birch, 4 Misc.3d 1017 (A), 2004 NY Slip Op 50927 [U] [Webster Just. Ct.])." (People v. Maley, 50 Misc.3d 1220 [A], 2016 NY Slip Op 50184[U] *1)
However, in the instant case the arresting officer does state the source of his information and belief, to wit: the deposition of Albert Jones, Jr. Nevertheless, a review of the said supporting deposition does not reveal any first person information relative to the source of Albert Jones Jr.'s injuries. In fact, just the opposite is true. Namely that Mr. Jones stated that he "didn't know what had happened." Thus we are left with neither of the accusatory instruments having any non-hearsay allegations against the defendant.
Conclusion.
The information herein, constituted by the complaint and the supporting deposition, is insufficient on its face, pursuant to CPL § 170.35 (1) (a). As a result, the motion to dismiss the accusatory herein pursuant to CPL 170.30 (1) (a) is hereby granted without prejudice to the People. This constitutes the decision and order of this court.
"Under New York law, if an accusatory instrument is 'so radically defective that it would not support a judgment of conviction', jeopardy never attaches under the instrument, and retrial upon correction of the defect is not barred [internal citations omitted]." (People v. Key, 45 N.Y.2d 111,117, 408 N.Y.S.2d 16,19 [1978]) The court went on to say that "... if there had been no possibility of obtaining a valid conviction under the accusatory instrument, defendant was never put in jeopardy, and should be subject to subsequent prosecution...." (Id. at 117, 19-20) As the rule has developed in New York, however, reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence. The rule applies even if the dismissal occurs after jeopardy has attached." (Id. at 117, 20)