THE PEOPLE OF THE STATE OF NEW YORK, Respondent
v.
CYNTHIA SAVOIA, Appellant.
Submitted By: Judah Serfaty (counsel for the appellant); Margaret E. Mainusch (counsel for the respondent)
Judgment Reversed / Accusatory Instrument Dismissed: Patricia D. Collins, J.P.; Angelo J. Ingrassia & Marquette L. Floyd, JJ.
DECISION OF THE COURT
<SM-1>
Defendant appeals from a judgment of the District Court of Nassau County (A. J. Falanga, J.), rendered August 21, 1995, convicting defendant, after a jury trial, of obstructing governmental administration in violation of Penal Law § 195.05, and sentencing defendant to a conditional discharge and the payment of a $90 fine.
Judgment of conviction unanimously reversed on the law, information dismissed, and fine, if paid, remitted.
Defendant was originally charged with obstructing governmental administration in the second degree (Penal Law § 195.05), possession of noxious material (Penal Law § 270.05[2]), and harassment in the second degree (Penal Law § 240.26<SM-2>[3]). The two latter charges were dismissed prior to trial.
The criminal proceeding is predicated on defendant refusing orders of police officers to remove her vehicle from the private driveway of one Anthony Farino.
Although defendant's court-appointed attorney waived the reading of the charges at the arraignment, a pre-trial motion to dismiss the accusatory instrument was made on the grounds that said instrument for obstructing governmental administration was facially defective. The court denied the motion and the matter proceeded to trial.
The District Court information charging obstructing governmental administration states as follows:
Inasmuch as we conclude that defendant was prosecuted on a jurisdictionally defective information, the conviction cannot stand.
It is well settled that a criminal defendant in a misdemeanor action has the non-waivable right to be tried by a jurisdictionally sufficient information (see, CPL 170.65[1]; see also, People v. Alejandro, 70 NY2d 133 [1987]). An <SM-4> information is sufficient on its face if it contains "[n]on-hearsay allegations [in] the factual part of the information and/or [in] any supporting deposition [which] establish, if true, every element of the offense charged and defendant's commission thereof." (CPL 100.15; CPL 100.40). While a defendant may waive his right to be tried by an information (CPL 170.65[1]; People v. Connor, 63 NY2d 11 [1984]), such is not the case in the instant matter, as defendant affirmatively made a motion to dismiss the accusatory instrument on the grounds of the instrument's defective nature prior to trial (see, People v. Connor, supra, at 14, n 1).
Penal Law § 195.05 states as follows:
<SM-5> First, the purported District Court information contains hearsay allegations in that "Mr. Farino informed your deponent that he asked the defendant to leave numerous times and defendant refused," and that Mr. Farino had informed the deponent that he lived at the subject location. Moreover, the gravamen of the charge was that defendant refused to move her vehicle and "comply with said lawful orders of the police." This bald and conclusory statement does not, in any way, set forth the basis for obstructing governmental administration and fails to set forth the basis for an arrest. Thus, the accusatory instrument is dismissed.
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