Opinion
03-4086.
Decided July 13, 2004.
Jeanine Ferris Pirro, Westchester County District Attorney, Mount Vernon branch, for plaintiff.
Helene S. Sherman, Esq., Attorney for Defendant, Great Neck, New York.
The defendant, charged with assault in the third degree and harassment in the second degree, makes this omnibus motion seeking to dismiss the accusatory instrument as facially insufficient, and on speedy trial grounds.
The defendant argues that the supporting deposition is insufficient to convert the misdemeanor complaint into an information, because the victim identified the defendant in the supporting deposition as "Ms. Lee," when the defendant's actual name is Cha Kim Son. The defendant contends that since she was not properly identified by name in the supporting deposition, her identification is based on hearsay. She further argues that since more than ninety days have elapsed from the date of arraignment, and the complaint has not been properly converted into an information, the accusatory should be dismissed on speedy trial grounds.
To be sufficient on its face, an information must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof (P.L. 100.40(c); People v. Alejandro, 70 NY2d 133 (1987)).
The misdemeanor complaint charges the defendant Cha Kim Son with having committed the above noted crimes at 23 West Grand Street in Mount Vernon at about 6 p.m. on September 26, 2003. The supporting deposition describes the incident as having occurred on the same date, location and approximate time as noted in the complaint. The facts of the incident as described by the victim in the supporting deposition are the same as described in the complaint, with the exception that the defendant is referred to as "Ms. Lee."
The fact that the victim did not know the actual name of the defendant when she gave her supporting deposition to the police on September 26, 2003 does not invalidate the information. The defendant was not arrested until September 27, 2003, after the victim had identified the defendant in person to the police. The defendant was served with a CPL 710.30 notice with respect to this identification by the victim and has not moved for a Wade hearing. Therefore, the Court finds that the accusatory contains sufficient nonhearsay allegations of defendant's identity to establish her commission of the crimes charged ( see People v. Trendell, 61 NY2d 728 (1984); People v. Mendez, 63 AD2d 69 (1st Dept 1978)).
Since the misdemeanor complaint was properly converted into an information by the supporting deposition, the People's announcement of readiness on October 1, 2003, the date of the arraignment, was valid. The motion to dismiss on speedy trial grounds is therefore denied.
The defendant's motion to dismiss the information is denied for the above reasons.
This constitutes the Decision and Order of this Court.