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Persistence pays off – DWI charge dismissed upon re-argument of previously denied motion to dismiss


imagesA criminal court requires a proper “Accusatory Instrument” before it to have the legal authority to prosecute a defendant. This goes to the “Subject Matter Jurisdiction” of the court, without which any prosecution is invalid and a nullity.

There are 2 types of accusatory instruments: “Complaints” and “Informations.” A complaint is essentially the police officer’s report. An page5409information is the complaint in more detail based on first person observations which are sworn to. The sworn statements are called “Supporting Depositions.” A police officer can complete a supporting deposition to turn his complaint into an information only if that officer witnessed the alleged offense.

A complaint is satisfactory to give the court jurisdiction for the first 90 days starting on the arraignment date. Within that time frame, the prosecutor must “Convert” the complaint into an information. This is done by serving on the defendant and filing with the court the appropriate supporting depositions.

Merely having a supporting deposition filed does not necessary convert the complaint to an information. Sufficiency of the supporting deposition enabling a complaint to be converted into an information is based on a 2 pronged test: the supporting depositions must be based on (1) non hearsay (i.e. first person) statements, and (2) must provide reasonable cause to 79fc886b19fc8aef15f403c6897f00ff25bd6bf1believe that the defendant committed the defense. Only then is a complaint converted to an information and a prima facie case is established sufficiently to give the court jurisdiction to prosecute the defendant. This is black letter imageslaw, and is stated in New York’s Criminal Procedure Law NY § 100.15 & NY CPL § 100.30. Further, the New York State Court of Appeals in People v. Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1987) reaffirmed this.

In my defense of every client charged with a misdemeanor I carefully review the accusatory instruments to ensure that they conform to the requirements of law. I carefully review the statute under which my client was charged and HomeGridensure that all of the elements of the crime are properly alleged in first person, non hearsay form. Most of the time the deficiency is that the accusatory instruments lack an allegation or allegations of elementary requirements of the offense. That is what happened in Alejandro. There defendant was accused of resisting arrest but the accusatory instruments failed to allege that the defendant was being placed under arrest at the time of the resisting, i.e., no underlying arrest = no resisting arrest = no information = no jurisdiction.

This case turned on the fact that the supporting deposition was not based upon first person observations but contained inadmissible hearsay to establish the allegations of the elements of the offense charged. My client was charged with driving while intoxicated. However, the arresting officer and deponent never observed the defendant operating a vehicle or observed my client in an intoxicated state.

The facts were as follows: my client was sitting in his car double parked on a Queens Street with the car not running. A police sergeant happened upon him and engaged him in conversation, alleging that someone had made a 911 call that a person fitting my client’s description in a vehicle fitting my client’s traffic-stop-1vehicle was in an intoxicated state attempting to drive the vehicle. According to the police paperwork, my client’s keys were in the ignition and he was slurring his words, had a difficult time producing his license, and was unsteady on his feet. The Sergeant took my client into custody and rather than personally arrest him called a patrol officer to make the arrest. By the time that the arresting officer got there my client was in handcuffs in the sergeant’s patrol vehicle.


Consequently, the arresting officer’s supporting deposition was replete with ‘I was told by Sgt. Lee that defendant was slurring his words… I was told by Sgt. Lee that defendant was unsteady on his feet…’ These allegations are not in proper evidentiary form, as they are not based on first person knowledge but impermissible hearsay. Therefore, no first person allegations = no conversion to information = no court jurisdiction.

I first moved the court to dismiss the charges on March 22, 2010 based upon the fact that the complaint had not been converted to an information. On April 14, 2010 the court handed down its decision denying the motion to dismiss. The court quoted the law correctly, to wit: “a legally sufficientalg_judge information must contain non-hearsay allegations establishing, if true, every element of the offense charged and the defendant’s commission thereof. An information which fails to satisfy these requirements is jurisdictionally defective.” Nonetheless, the court held that it found the information sufficient to meet the requirements for facial sufficiency.”

Mike At the following court date I orally argued that the court incorrectly applied the law. The court agreed, however that judge was not the actual judge who had rendered the decision. Under court rules and procedures only the judge that rendered a decision can overturn it. So I was granted leave to re-argue.

The re-argument motion was returned to the court on July 14, 2010. On thatmass_accident_lawyer1 day I was advised that the judge wanted oral argument, which was adjourned to the following day. When I showed up in court the prosecutor advised me on their closer review of the case they agreed that the information was insufficient. Consequently, the Queens County District Attorney moved to dismiss the charges. I did what any self respecting criminal defense lawyer would do in Gavelthat situation, kept my mouth shut. The motion to dismiss was granted, and with a bang of the gavel the case was dismissed.

Susoicious Vehicle Pursuit

When arrested for a criminal offense it is important that you retain a law firm that understands not only criminal law but criminal procedure, rules of evidence, rules of hearsay, court procedure and rules, and even civil litigation and procedure. All of these elements came into play in dismissal of this case.

Our law firm can be reached toll free at 1-877-99-NO-TIX (1-877-996-6849) or can be found online at