New York Law Review

Tag: Misdemeanor Complaint

  • People v. Willis, 2025 NY Slip Op 01405: Sufficiency of Misdemeanor Complaints in Aggravated Unlicensed Operation Cases

    2025 NY Slip Op 01405

    A misdemeanor complaint for aggravated unlicensed operation of a motor vehicle is facially sufficient if it alleges facts of an evidentiary character demonstrating reasonable cause to believe the defendant knew or had reason to know their license was suspended, even without alleging direct receipt of a summons.

    Summary

    The New York Court of Appeals addressed whether misdemeanor complaints charging aggravated unlicensed operation of a motor vehicle in the third degree (AUO3) were facially sufficient. The Court held that the complaints, which alleged that defendants’ licenses were suspended for failing to answer traffic summonses, were sufficient even though they did not explicitly state that defendants received the summonses. The Court found the complaints’ allegations, including the DMV records and statements about summons warnings, provided reasonable cause to believe the defendants knew or should have known of their license suspensions. The defendants had waived their right to prosecution by information.

    Facts

    In two consolidated cases, police officers stopped the defendants for traffic violations and discovered, through DMV records, that their licenses were suspended multiple times for failing to answer traffic summonses. The subsequent misdemeanor complaints alleged the officers observed the defendants driving, reviewed the DMV records, and knew or had reason to know of the license suspensions based on the records, and that traffic summonses contained warnings that failure to respond would result in license suspension. Defendants waived prosecution by information, pleaded guilty to AUO3, and appealed the facial sufficiency of the complaints.

    Procedural History

    Both defendants were charged by misdemeanor complaints in the lower courts and convicted. They appealed to the Appellate Term, which affirmed the convictions, concluding the complaints were facially sufficient to establish reasonable cause. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the misdemeanor complaints were facially sufficient, even though they did not specifically allege that the defendants received the traffic summonses?

    Holding

    1. Yes, because the complaints, coupled with the DMV records and other facts, provided sufficient reasonable cause to believe the defendants knew or should have known their licenses were suspended.

    Court’s Reasoning

    The Court of Appeals explained that misdemeanor complaints require only a showing of reasonable cause, a less stringent standard than the prima facie case required for informations. The factual part of a misdemeanor complaint must allege “facts of an evidentiary character” demonstrating “reasonable cause” to believe the defendant committed the crime charged. The Court found that the complaints satisfied this standard because they provided information sufficient to put defendants on notice of the crime and to prevent double jeopardy. The Court found that the allegations provided sufficient facts for a person of ordinary intelligence, judgment and experience to infer that at least one of the summonses was received, noting also that the defendants could assess what defenses were available.

    The Court distinguished cases involving conclusory allegations in misdemeanor complaints. The Court found that the officers’ statements about the warnings on summonses and automatic suspensions demonstrated nonconclusory bases for believing that defendants knew their licenses were suspended, providing sufficient evidence from which a person could reasonably infer defendants knew or had “reason to know that [their] license[s] . . . [were] suspended” (Vehicle and Traffic Law § 511 [1] [a]).

    Practical Implications

    This case clarifies that a misdemeanor complaint alleging AUO3 is sufficient if it provides facts from which a reasonable inference can be drawn that the defendant knew or should have known of their license suspension, even without alleging direct receipt of a summons. Prosecutors should ensure complaints include sufficient detail regarding the basis for the officer’s knowledge of the suspension, such as DMV records and standard procedures. Defense attorneys can challenge complaints by arguing that the facts do not support a reasonable inference that the defendant knew or should have known of the suspension.

  • People v. Ortiz, 27 N.Y.3d 127 (2016): Facial Sufficiency of a Misdemeanor Complaint in a Weapon Possession Case

    27 N.Y.3d 127 (2016)

    An accusatory instrument for a misdemeanor complaint must provide the defendant with sufficient notice of the charged crime to satisfy due process and double jeopardy, and when describing a common object like metal knuckles, it does not require recitation of an officer’s training or experience if the description is clear.

    Summary

    The New York Court of Appeals addressed the facial sufficiency of a misdemeanor complaint charging the defendant with criminal possession of a weapon, specifically metal knuckles. The court held that the accusatory instrument was sufficient because it clearly stated that the defendant possessed “brass metal knuckles,” a per se weapon. The court found that the term had a commonly understood meaning, providing the defendant with adequate notice of the charge. It distinguished this case from those involving items like gravity knives, where the officer’s training and experience in identifying the specific operational mechanism are relevant. The court emphasized that the description of metal knuckles did not require any specific explanation of the officer’s training or experience.

    Facts

    A police officer stopped the defendant and recovered “brass metal knuckles” from his pocket. The defendant was charged with criminal possession of a weapon in the fourth degree, specifically violating Penal Law § 265.01 (1). The accusatory instrument stated that the officer “recovered one set of brass metal knuckles from defendant’s right front pants pocket.” The defendant moved to dismiss the complaint, arguing it was facially insufficient. The Criminal Court denied the motion. The defendant then pleaded guilty to disorderly conduct. On appeal, the defendant argued that the accusatory instrument was facially insufficient.

    Procedural History

    The Criminal Court denied the defendant’s motion to dismiss the complaint. The Appellate Term affirmed the Criminal Court’s decision, holding the factual allegations in the accusatory instrument were sufficient. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    Whether the accusatory instrument, alleging that the defendant unlawfully possessed “brass metal knuckles,” was facially sufficient under Criminal Procedure Law § 100.15 (3) and § 100.40 (4)(b).

    Holding

    Yes, because the accusatory instrument provided sufficient notice of the crime charged, the defendant was adequately informed of the charge, and the term “brass metal knuckles” has a common and natural definition.

    Court’s Reasoning

    The court began by noting that because the defendant waived prosecution by information, the standard of review was for a misdemeanor complaint. Under Criminal Procedure Law § 100.15 (3), the factual part of the complaint must contain facts of an evidentiary character supporting the charges. The complaint must also establish reasonable cause. The court emphasized that the test for facial sufficiency is whether the instrument provides sufficient notice to satisfy due process and double jeopardy. The Court looked at dictionary definitions and the common understanding of “metal knuckles.” They are described as a metal object with finger holes used as a weapon to increase the impact of a fist. The Court found the accusatory instrument sufficient because it clearly informed the defendant of the crime charged and the object recovered. The court distinguished the case from instances involving a gravity knife, where an officer must explain their basis for concluding the item is such.

    Practical Implications

    This case clarifies the requirements for the facial sufficiency of accusatory instruments related to weapon possession, specifically when the weapon is a commonly understood item. Prosecutors and law enforcement officers should ensure that the accusatory instruments clearly describe the item in question. For common items like metal knuckles, specific explanations of an officer’s training may not be needed, but a clear description in the accusatory instrument is still critical. This case also reinforces the distinction between weapons with clear characteristics, and those, like gravity knives, that require an explanation of the weapon’s operation. Defense attorneys should focus on whether the accusatory instrument provides sufficient notice, arguing if the description is vague, lacking detail, or does not accurately portray the object, the complaint can be insufficient. Subsequent cases will likely cite this decision to reinforce the need for sufficient detail in the accusatory instruments.

  • People v. Dumay, 23 N.Y.3d 518 (2014): Valid Waiver of Prosecution by Information

    People v. Dumay, 23 N.Y.3d 518 (2014)

    A defendant may knowingly and intelligently waive prosecution by misdemeanor information, even if the case was initially commenced by an information, and upon such waiver, the accusatory instrument need only satisfy the reasonable cause standard applicable to a misdemeanor complaint.

    Summary

    Joseph Dumay was arrested for obstructing governmental administration. He pleaded guilty in exchange for a 15-day sentence after his counsel stated, “So waive,” in response to the court’s inquiry about waiving prosecution by information. Dumay later appealed, arguing that he did not validly waive prosecution by information and that the accusatory instrument was facially insufficient. The Court of Appeals held that Dumay did validly waive prosecution by information, and the accusatory instrument met the reasonable cause standard required for a misdemeanor complaint. This decision underscores the importance of clear and affirmative acts demonstrating a defendant’s intent to waive statutory protections and prevents manipulation of the plea bargaining system.

    Facts

    Dumay was arrested on a public street in Brooklyn for obstructing a police officer. The accusatory instrument stated that Dumay “slammed the trunk of [the police officer’s] radio mounted patrol vehicle with an open hand and prevented said vehicle from moving by standing behind it and preventing [the police officer] from patrolling the neighborhood.” In court, Dumay agreed to plead guilty to obstructing governmental administration in exchange for a 15-day sentence. When the court asked defense counsel if Dumay waived prosecution by information, the defense attorney responded, “So waive.” Dumay admitted the facts during the plea allocution.

    Procedural History

    Dumay appealed his conviction to the Appellate Term, arguing he did not waive prosecution by information and the accusatory instrument was jurisdictionally defective. The Appellate Term affirmed, finding Dumay expressly waived his right, and the allegations were sufficient as a misdemeanor complaint. A Judge of the Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Dumay validly waived his right to prosecution by information.

    2. Whether the accusatory instrument met the factual sufficiency requirements of a misdemeanor complaint, specifically regarding the elements of intent and obstruction.

    Holding

    1. Yes, Dumay validly waived his right to prosecution by information because defense counsel affirmatively stated, “So waive,” in open court and in Dumay’s presence.

    2. Yes, the accusatory instrument met the requirements of a misdemeanor complaint because it established reasonable cause to believe Dumay committed the offense of obstructing governmental administration.

    Court’s Reasoning

    The Court of Appeals reasoned that a valid and sufficient accusatory instrument is a jurisdictional prerequisite to a criminal prosecution. While a misdemeanor information requires non-hearsay allegations establishing every element of the offense, a misdemeanor complaint only requires facts establishing reasonable cause. The Court emphasized that a defendant may knowingly and intelligently waive prosecution by information through an affirmative act. Here, defense counsel’s statement, “So waive,” constituted a clear waiver. The court rejected Dumay’s argument that he could not waive prosecution by information because the People initiated the case by information, clarifying that CPL 170.65 specifically allows such a waiver. The Court also reasoned that adopting Dumay’s interpretation would allow manipulation of the plea bargaining system and undermine the finality of convictions.

    Regarding the sufficiency of the complaint, the court noted that a misdemeanor complaint is adequate if it provides sufficient notice of the crime and establishes reasonable cause. Penal Law § 195.05 defines obstructing governmental administration as intentionally obstructing a public servant from performing an official function. The Court found the instrument provided enough facts: Dumay slammed the trunk of a marked police car and stood behind it, preventing the officer from patrolling. The court stated, “[C]riminal responsibility should attach to minimal interference set in motion to frustrate police activity.” Intent could be inferred from the act itself, as Dumay struck a “radio mounted patrol vehicle,” showing awareness of its official use. The Court concluded the instrument provided sufficient notice and prevented double jeopardy, affirming the Appellate Term’s order.

  • People v. Dreyden, 15 N.Y.3d 100 (2010): Sufficiency of Misdemeanor Complaint for Gravity Knife Possession

    People v. Dreyden, 15 N.Y.3d 100 (2010)

    A misdemeanor complaint charging possession of a gravity knife must contain evidentiary facts establishing reasonable cause to believe the knife meets the statutory definition, not just a conclusory statement.

    Summary

    James Dreyden was arrested after a police officer found a knife and marihuana in his possession during a traffic stop. He was charged with unlawful possession of marihuana and criminal possession of a weapon. Dreyden pleaded guilty to the weapon charge. On appeal, he argued that the accusatory instrument was jurisdictionally defective because it lacked non-conclusory allegations that the knife was a gravity knife. The Court of Appeals held that the misdemeanor complaint was insufficient because it lacked factual support for the officer’s conclusion that the knife was a gravity knife, violating the “reasonable cause” requirement. Because a valid accusatory instrument is a nonwaivable jurisdictional prerequisite, the guilty plea did not waive the defect, and the complaint was dismissed.

    Facts

    On June 2, 2007, a police officer stopped a van in Brooklyn for a traffic violation. James Dreyden, a passenger, was found to be in possession of a knife and a ziplock bag containing marihuana. He was charged with unlawful possession of marihuana and criminal possession of a weapon in the fourth degree.

    Procedural History

    Dreyden pleaded guilty to the weapon charge in exchange for a sentence of time served, waiving prosecution by information. He then appealed, arguing that the accusatory instrument was jurisdictionally defective. The Appellate Term affirmed his conviction. A Judge of the Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a misdemeanor complaint charging possession of a gravity knife must include factual allegations establishing reasonable cause to believe that the knife meets the statutory definition of a gravity knife.

    Holding

    Yes, because a mere conclusory statement that an object is a gravity knife, without factual support, does not meet the reasonable cause requirement for a valid accusatory instrument.

    Court’s Reasoning

    The Court of Appeals emphasized that a valid accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. The court noted that the test for whether a flaw is jurisdictional is whether the accusatory instrument failed to supply the defendant with sufficient notice of the charged crime to satisfy due process and double jeopardy. The court distinguished between jurisdictional defects and less fundamental flaws, such as evidentiary or technical matters.

    The court reasoned that the misdemeanor complaint, which stated only that the arresting officer observed Dreyden in possession of a gravity knife and recovered one from him, failed to provide any factual basis for the officer’s belief. The court stated that “the factual part of a misdemeanor complaint must allege ‘facts of an evidentiary character’ (CPL 100.15 [3]) demonstrating ‘reasonable cause’ to believe the defendant committed the crime charged (CPL 100.40 [4] [b])”.

    The People argued that the rationale for the “reasonable cause” requirement, which applies to controlled substance charges, did not apply to gravity knife charges. The court disagreed, explaining that not every knife is a weapon under Penal Law § 265.01(1). The Penal Law has a specific definition of a gravity knife, distinguishing it from other types of knives. The definition “requires that the blade lock in place automatically upon its release and without further action by the user”. The court found that an officer must explain, with reference to training and experience, why the object is believed to be a gravity knife as opposed to another type of knife. The court concluded that because the accusatory instrument lacked any factual basis for the officer’s conclusion, it was jurisdictionally defective and required dismissal.

  • People ex rel. Maxian v. Gold, 684 N.E.2d 959 (N.Y. 1997): Sufficiency of Misdemeanor Complaints with Corroborated Charges

    People ex rel. Maxian v. Gold, 89 N.Y.2d 1033, 684 N.E.2d 959, 657 N.Y.S.2d 575 (1997)

    Under New York Criminal Procedure Law, a defendant is not improperly held solely on the basis of hearsay allegations if an accusatory instrument contains at least one count that satisfies the requirements of an information and could be the basis for prosecution.

    Summary

    Maxian was arrested and arraigned on two accusatory instruments, each containing multiple charges, some corroborated by non-hearsay allegations and at least one uncorroborated charge. He filed habeas corpus petitions seeking release under CPL 170.70, arguing that the People failed to corroborate every charge within five days of his confinement. The Supreme Court denied the petitions, finding that because at least one count in each complaint was adequately supported, Maxian’s detention was lawful. The Appellate Division affirmed. The New York Court of Appeals affirmed, holding that CPL 170.70 is meant to prevent prolonged detention based solely on hearsay, and since each instrument contained a valid charge, the statute’s purpose was satisfied.

    Facts

    Relator Maxian was arraigned on two accusatory instruments containing numerous charges. Some charges within each instrument were supported by non-hearsay allegations. Each instrument included at least one charge that was not corroborated by non-hearsay allegations.
    Maxian sought release under CPL 170.70, arguing failure to corroborate each charge within five days.

    Procedural History

    Maxian filed habeas corpus petitions in Supreme Court, which were denied.
    The Appellate Division affirmed the Supreme Court’s denial.
    The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant is improperly held solely on the basis of hearsay allegations, pursuant to CPL 170.70, when an accusatory instrument contains multiple charges, some corroborated and some uncorroborated, and at least one charge satisfies the requirements of an information under CPL 100.15 and 100.40(1).

    Holding

    No, because CPL 170.70 is designed to prevent prolonged detention based solely on hearsay allegations, and if at least one count in the accusatory instrument satisfies the requirements of an information and can serve as the basis for prosecution, the statute’s purpose is met.

    Court’s Reasoning

    The court reasoned that CPL 170.70 was designed to ensure that defendants are not held in custody for more than a brief period based on hearsay allegations. The court emphasized that the statute requires release only when a misdemeanor complaint is pending without any information having been filed.
    In this case, each accusatory instrument satisfied the requirements of an information because at least one count in each instrument was supported by non-hearsay allegations. As such, each instrument, from its inception, could have served as the basis for prosecuting a criminal action.
    The court quoted CPL 100.15 and 100.40(1), noting that they define the facial sufficiency of an information or a count thereof. Since Maxian was not held solely on hearsay allegations, the court affirmed the lower courts’ decisions.

  • People v. Dumas, 68 N.Y.2d 729 (1986): Sufficiency of Misdemeanor Complaints for Drug Sales

    People v. Dumas, 68 N.Y.2d 729 (1986)

    A misdemeanor complaint charging a drug sale must contain factual allegations of an evidentiary character establishing reasonable cause to believe the defendant committed the crime, and conclusory statements are insufficient without supporting facts.

    Summary

    The New York Court of Appeals reversed the Appellate Term’s orders, reinstating the Criminal Court’s dismissal of misdemeanor complaints. The court held that the complaints were facially insufficient because they lacked evidentiary facts to support the conclusion that the substance sold was marijuana. The complaints relied on conclusory statements from an undercover officer without detailing the officer’s expertise in identifying marijuana or any representations by the defendant about the substance. The court emphasized that a misdemeanor complaint must provide sufficient facts for the court to determine whether the defendant should be held for further action and to justify the issuance of an arrest warrant.

    Facts

    An undercover police officer allegedly purchased marijuana from the defendant, Dumas. The misdemeanor complaint stated that the deponent was informed by an undercover officer that Dumas knowingly and unlawfully sold marijuana, specifically, two clear plastic bags of marijuana, for a sum of U.S. currency. A similar complaint was filed in the Fausto case.

    Procedural History

    The Criminal Court dismissed the misdemeanor complaints as facially insufficient. The Appellate Term reversed the Criminal Court’s decision. The New York Court of Appeals then reviewed the Appellate Term’s orders.

    Issue(s)

    Whether a misdemeanor complaint alleging the sale of marijuana is facially sufficient when it relies on a conclusory statement from an undercover officer without providing evidentiary facts supporting the conclusion that the substance sold was marijuana.

    Holding

    No, because the factual part of a misdemeanor complaint must allege “facts of an evidentiary character” demonstrating “reasonable cause” to believe the defendant committed the crime charged. The complaint must allow the court to determine whether the defendant should be held for further action.

    Court’s Reasoning

    The Court of Appeals found the misdemeanor complaints facially insufficient because they contained only conclusory statements that the defendant sold marijuana without providing any evidentiary facts to support that conclusion. The court noted the absence of any allegation that the police officer was an expert in identifying marijuana, referencing People v. Kenny, or any allegation that the defendant represented the substance as being marijuana. The supporting depositions, in which the undercover officer merely adopted the statements in the complaints, did not provide additional facts. The court emphasized that misdemeanor complaints must contain sufficient facts for the court to determine whether the defendant should be held for further action, especially considering that the complaint alone may serve as the basis for issuing an arrest warrant. As the court stated, the factual part of a misdemeanor complaint must allege “facts of an evidentiary character” (CPL 100.15 [3]) demonstrating “reasonable cause” to believe the defendant committed the crime charged (CPL 100.40 [4] [b]). The court distinguished this from a mere pleading defect, highlighting the importance of factual allegations for establishing reasonable cause.

  • People v. Douglass, 60 N.Y.2d 194 (1983): Limits on a Trial Court’s Power to Dismiss Criminal Complaints for Failure to Prosecute

    People v. Douglass, 60 N.Y.2d 194 (1983)

    A trial court lacks the inherent or statutory authority to dismiss a misdemeanor complaint for “failure to prosecute” or “calendar control” when the statutory speedy trial time has not elapsed; the power to dismiss is governed exclusively by statute.

    Summary

    This case addresses whether a trial court can dismiss a misdemeanor complaint based on the prosecution’s failure to convert the complaint into an information within a court-determined timeframe, absent a speedy trial violation. The Court of Appeals held that trial courts do not have the inherent or statutory authority to dismiss criminal charges for “failure to prosecute” or “calendar control.” The court emphasized that the power to dismiss is governed by statute (CPL 170.30), which exhaustively lists grounds for dismissal, and these grounds do not include failure to prosecute. While trial courts have calendar control powers, these do not extend to dismissing cases outside statutory grounds. The court reversed the Appellate Term’s orders and reinstated the complaints.

    Facts

    Several defendants were arrested and charged with various misdemeanors. In each case, the prosecutor failed to convert the misdemeanor complaint into an information (by obtaining supporting depositions) within a timeframe set by the trial court. The statutory speedy trial period (CPL 30.30) had not yet elapsed in any of the cases.

    Procedural History

    In each case, the New York City Criminal Court dismissed the charges due to the prosecutor’s failure to timely convert the complaint into an information. The Appellate Term affirmed the dismissals, holding that the trial courts acted within their discretion to control their calendars and address the prosecutor’s unpreparedness. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether trial courts have the inherent power to dismiss misdemeanor complaints for “failure to prosecute” or “calendar control” when the statutory speedy trial time has not elapsed.

    Holding

    1. No, because neither common law nor statute grants trial courts the authority to dismiss criminal charges for failure to prosecute or calendar control; the grounds for dismissal are exhaustively listed in CPL 170.30, and these grounds do not include failure to prosecute or calendar control.

    Court’s Reasoning

    The Court of Appeals stated that the lower courts had no authority to dismiss the charges for “failure to prosecute” or for “calendar control.” The court analyzed the historical development of the power to dismiss criminal charges, noting that at common law, only the Attorney General (later the District Attorney with court approval) could discontinue a criminal proceeding by entering a nolle prosequi. The court emphasized that it was the fear of prosecutors dismissing too many cases that prompted the Legislature to authorize courts to intercede, granting them a veto power but not a positive power to compel a discontinuance. The court noted that prior to the enactment of the Code of Criminal Procedure in 1881, there was no inherent power vested in the courts to dismiss a criminal prosecution for “failure to prosecute”.

    The court emphasized that CPL 170.30 comprehensively lists the grounds for dismissing a misdemeanor complaint, and “failure to prosecute” or “calendar control” are not among them. To allow dismissals on these grounds would be an “abdication of the judiciary’s responsibility to safeguard the public and promote respect for the law” and would create dismissals “incapable of meaningful appellate review.”

    The court distinguished cases cited by the defendants, such as People v. Wingard, noting that those cases involved dismissals in the interest of justice pursuant to CPL 170.40 or other statutorily authorized dismissals. The court stated, “Thus, it is not for the trial courts to depart from the clear wording of CPL 170.30 and adopt, ipse dixit, a rule which empowers them to dismiss criminal proceedings on grounds, such as “failure to prosecute” and “calendar control”, which the Legislature never authorized.” The court concluded that the dismissals were unauthorized and unnecessary.

  • People v. Weinberg, 34 N.Y.2d 429 (1974): Waiver of Right to Prosecution by Information

    People v. Weinberg, 34 N.Y.2d 429 (1974)

    A defendant’s right to be prosecuted by information, rather than a misdemeanor complaint, is a substantial right that must be knowingly and intelligently waived, and such waiver cannot be presumed in the absence of the court advising the defendant of this right.

    Summary

    Weinberg was convicted of shoplifting based on a hearsay misdemeanor complaint. He was never advised of his right to be prosecuted by information. The New York Court of Appeals addressed whether Weinberg waived his right to a trial by information by pleading and proceeding to trial on the misdemeanor complaint. The Court of Appeals held that a defendant must be informed of their right to be prosecuted by information before a waiver of that right can be considered knowing and intelligent. Because Weinberg was not informed of this right, his waiver could not be presumed, and his conviction was reversed.

    Facts

    A store detective observed Weinberg leaving Gimbel’s Department Store with two shirts without paying. He was apprehended in a vestibule. Weinberg claimed it was a mistake and asked to return the shirts. He was arrested and issued an appearance ticket.

    Procedural History

    A misdemeanor complaint was filed by a police detective based on information from the store’s security officer. Weinberg pleaded not guilty, was tried, and convicted of petit larceny in the Criminal Court of the City of New York. The Appellate Term affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a defendant, by pleading and proceeding to trial on a misdemeanor complaint, waives their statutory right to a trial by information when the court has not advised them of this right.

    Holding

    No, because the right to be prosecuted by information is a substantial right that must be knowingly and intelligently waived, and such a waiver cannot be presumed when the court has not advised the defendant of this right.

    Court’s Reasoning

    The court reasoned that a misdemeanor complaint, based on hearsay, is insufficient for prosecution purposes unless the defendant consents to be tried on it. The right to be prosecuted by information is a substantial right because an information requires non-hearsay allegations. The court emphasized that a waiver of a substantial right must be knowing and intelligent. CPL 170.10(4) requires the court to advise a defendant of the right to trial by information. The court stated: “But in the absence of an effective admonition of the right to be prosecuted by information, and here there was none, a waiver or consent to prosecution by misdemeanor complaint cannot be presumed.” The court suggested that a defendant, aware of the witnesses and the case against them, would likely waive the right if informed. Because Weinberg was not informed of his right to be prosecuted by information, his waiver to that right could not be presumed. Therefore, the order of the Appellate Term was reversed and the misdemeanor complaint was dismissed.