Opinion
CR–09651–17
04-20-2018
The PEOPLE of the State of New York, Plaintiff, v. Cory WAGNER, Defendant.
For the People: HON. JOEL E. ABELOVE. Rensselaer County District Attorney (George B. Sexton, Esq., of Counsel) For Defendant: JAMES C. KNOX, ESQ.
For the People: HON. JOEL E. ABELOVE. Rensselaer County District Attorney (George B. Sexton, Esq., of Counsel)
For Defendant: JAMES C. KNOX, ESQ.
Christopher T. Maier, J.
The above named defendant stands charged with five counts of the crime of Making a Punishable False Written Statement, a violation of Section 210.45 of the Penal Law of the State of New York. The defendant has filed an Omnibus motion dated the 23rd day of February, 2018 and the People have filed an Affirmation in Opposition dated the 9th day of March, 2018, in response and in opposition thereto.
Defendant seeks dismissal of the pending charges on the grounds, inter alia , they are facially insufficient. Generally, an Information is sufficient on its face when it substantially conforms to the requirements prescribed in CPL § 100.15 and when the allegations of the factual part, together with any accompanying supporting depositions, provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations therein establish, if true, every element of the offense charged and the defendant's commission thereof ( CPL § 100.40[1] ). As set forth in People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000], the "procedural requirements for the factual portion of the local criminal court information are simply: that it state ‘facts of an evidentiary character supporting or tending to support the charges’ ( CPL 100.15[3] ; see CPL 100.40 [1 ] [a] )..." The Court in Casey went on to point out that "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading ( People v. Casey, 95 N.Y.2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). However, each and every element of the offense or offenses charged and a defendant's commission thereof must be established by evidentiary facts ( People v. Alejandro , 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). Casey and its progeny did not obviate the need to allege evidentiary facts supporting each and every element of the offenses charged.
Here, the defendant has been charged with Making a Punishable False Written Statement. "A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable." (PL § 210.45). It is alleged that the defendant intentionally failed to disclose information when he completed an employment application which includes a form notice that false statements made therein are punishable. Specifically, it is alleged that he misrepresented his answers to questions located on page 23 , 32 , 34 , and 37 . In order to be guilty of Making a Punishable False Written Statement, the People must show the following three elements:
It is alleged that the defendant failed to disclose an arrest which occurred on February 4, 2009.
It is alleged the defendant failed to respond truthfully to the question "Have you ever committed a crime for which you were not caught or arrested?" when he failed to disclose an allegation that he made harassing telephone calls to Eric Manning.
It is alleged the defendant failed to respond truthfully to the question "Have you ever misused or threatened anyone via the telephone" when he failed to disclose alleged harassing telephone calls to Eric Manning.
It is alleged that the defendant failed to respond truthfully to the question "Have you ever been the subject of an Order of Protection or filed one against another person?" when he failed to disclose the sentence of a conditional discharge which included an order of protection following his arrest on February 4, 2009. And it is alleged that the defendant failed to respond truthfully to the question "Have the police ever been called to any home/residence in which you have ever resided?" when he failed to disclose an interview he gave during an investigation at his home of a non-active burglary.
1. That the defendant made a false statement which he did not believe to be true;
2. that the defendant did so in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable; and
3. that the defendant did so knowingly (CJI2d[NY] Penal Law § 210.45 ).
Of concern to the Court is whether the use of the notice that false statements are punishable as a class A misdemeanor pursuant to § 210.45 of the penal law on the Rensselaer County Sheriff's Department's employment application is legally authorized.
The creation of the form notice under § 210.45 was "designed to ‘provide administrative and other government agencies with a convenient method, in connection with applications and other documents submitted to them, of demanding the truth upon pain of criminal sanctions, without resort to the cumbersome procedure of requiring oaths before notaries.’ Staff Notes of the Commission of Revision of the Penal Law. Proposed New York Penal Law. McKinney's Spec. Pamph. (1964), p. 376. The crime was drawn from Model Penal Code § 241.3 [2] and former Penal Law § 1620[4]. Special note should be taken of the statutory requirement that the document in question bear a ‘legally authorized’ form notice. The language on its face would appear to require independent legislation specifically authorizing the form notice to be affixed to a particular document ." (William C. Donnino, Practice Commentaries, McKinney's Cons Law of NY, Book 39, PL 210.45); see also People v. Guido , 114 Misc.2d 470, 454 N.Y.S.2d 171 [App. Term 2d Dept. 1982] (noting that " section 210.45 of the Penal Law is only applicable to situations where a specific authorization exists for the use of an affirmation in place of a notarized form); People v. Bromley , 85 Misc.2d 988, 990, 381 N.Y.S.2d 965 [Nassau County Court 1976] (finding no statutory authority to insert the form notice under PL § 210.45 in a written confession made by a defendant. Noting the form notice is "intended to apply to applications or other documents, submitted to governmental agencies which would otherwise require oaths before notaries"); but see People v. Sullivan , 56 N.Y.2d 378, 380, 452 N.Y.S.2d 373, 437 N.E.2d 1130 [1982] (finding the insertion of the form notice under PL§ 210.45 in a search warrant application permissible as a substitute for an oath or affirmation required under the State and Federal Constitution before a search warrant may be issued upon probable cause. However, it should be noted that the Court in Sullivan did not directly address the issue of legal authorization). As further noted in the Practice Commentary, the Legislature required the use of the form notice to be legally authorized, so as to prevent " ‘any’ person to affix the form notice to ‘any’ written instrument and thereby subjecting a subscriber to criminal liability..." (William C. Donnino, Practice Commentaries, McKinney's Cons Law of NY, Book 39, PL 210.45).
An illustration of a statute providing for the legally authorized use of the form notice exists in CPL § 100.30, which specifically allows the use of the notice in satisfying the verification requirements for a supporting deposition (CPL § 100.30 ); e.g Matter of Michael FF , 210 A.D.2d 758, 621 N.Y.S.2d 112 [3d Dept. 1994]citing CPL § 100.30 [1 ][d]; see also General Business Law § 72[3] ; General Municipal Law § 103–d ).
A review of the five accusatory instruments pending before the Court demonstrates that there are no evidentiary facts in any of the accusatory instruments that the use of this particular form notice is legally authorized. The Court's own research finds no statutory authority indicating that the form notice is a legally authorized use on the employment application in question. Moreover, there exists scant case-law interpreting this particular statute. In order for an accusatory instrument charging Making a Punishable False Written Statement to be facially sufficient, the People were required to allege that the document containing the form notice under PL § 210.45–here an employment application-is legally authorized. Viewing the allegations in a light most favorable to the People, as the Court must ( People v. Casey , 95 N.Y.2d at 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), these accusatory instruments utterly fail to allege that the form notice as used in the employment application is legally authorized. The failure to allege an element of the offense is a jurisdictional defect and requires dismissal. ( People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ).
Accordingly, the Defendant's motion to Dismiss the five counts of Making a Punishable False Written Statement is GRANTED. Given the foregoing dismissal, the Court will not address the defendant's motion for dismissal in the interest of justice.
This shall constitute the Decision and Order of the Court.
So ordered.