People v. McNeil (Matthew)

People v McNeil (2021 NY Slip Op 51250(U)) [*1] People v McNeil (Matthew) 2021 NY Slip Op 51250(U) [73 Misc 3d 145(A)] Decided on December 22, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 22, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2018-1932 K CR The People of the State of New York, Respondent, against Matthew McNeil, Appellant. Alan Ross, for appellant. Kings County District Attorney (Leonard Joblove and DmitriyPovazhuk of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Claudia Daniels-Depeyster, J.), rendered August 1, 2018. The judgment convicted defendant, following a nonjury trial, of attempted criminal mischief in the fourth degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant, who was charged in a superseding information with criminal mischief in the fourth degree (Penal Law § 145.00 [1]), moved to dismiss that accusatory instrument as facially insufficient, contending that it improperly relied on hearsay to establish his identity as the perpetrator. The People opposed the motion and, without conceding the challenge to the accusatory instrument, served and filed a second superseding information charging defendant with the same offense as the first superseding information, together with a supporting deposition, both of which were annexed to the opposition papers. In an order dated March 28, 2018, the Criminal Court denied defendant's motion. Prior to the commencement of a nonjury trial, a prosecutor's information charging defendant with attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00 [1]) was served and, following the trial, defendant was convicted of that charge, and the court imposed sentence. On appeal, defendant contends that both superseding informations were facially insufficient as they each impermissibly relied upon hearsay to establish his identity as the perpetrator. Pursuant to CPL 100.50 (1), the first superseding information was, as a matter of law, superseded by the second superseding information and dismissed. Consequently, even though defendant had moved to dismiss the first superseding information based on hearsay, his contentions pertaining to that accusatory instrument are academic. Pursuant to CPL 100.50 (2), a prosecutor's information may be filed charging any offense supported, pursuant to the standards prescribed in CPL 100.40 (1), by the allegations of the factual part of the underlying information and/or any supporting depositions which may accompany it (see CPL 100.50 [2]; People v Dublin, 71 Misc 3d 133[A], 2021 NY Slip Op 50358[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]) and thereupon the underlying information, here the second superseding information, is deemed dismissed (see CPL 100.50 [2]). While defendant does not challenge the facial sufficiency of the prosecutor's information (see CPL 100.35, 100.40 [3]), in effect he is claiming on appeal that it is defective because it derived from the second superseding information, the factual allegations of which, along with the accompanying supporting deposition thereto, were not legally sufficient to support the charge in the prosecutor's information (see CPL 100.50 [2]; 170.35 [3] [b]), as they impermissibly relied upon hearsay. As defendant failed to challenge, prior to trial, either the prosecutor's information on this ground or the alleged hearsay defect in the second superseding information, this claim has been waived (see People v Casey, 95 NY2d 354, 364 [2000]; People v Alonso, 19 Misc 3d 53 [App Term, 1st Dept 2008]; see generally People v Thomas, 4 NY3d 143, 146 [2005]). Thus, since we find that the second superseding information, along with the accompanying supporting deposition thereto, is otherwise jurisdictionally sufficient to support a misdemeanor prosecution (see CPL 100.40 [1]; People v Dumay, 23 NY3d 518, 522 [2014]; Casey, 95 NY2d 354), the prosecutor's information, upon which defendant was tried, was supported by a legally sufficient underlying information (see CPL 100.50 [2]; 170.35 [3] [b]). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 22, 2021