3.1 - II. Accusatory Instruments

• Jurisdiction: New York

II. ACCUSATORY INSTRUMENTS

At an arraignment, defense counsel generally waives the formal reading of the defendant’s rights³²¹ (without waiving the substantive rights themselves), and generally also waives the formal reading of the charges contained in the accusatory instrument. Even though it is not read aloud, however, the accusatory instrument is the basic legal document around which the arraignment and subsequent prosecution revolve. Therefore, a basic understanding of the legal requirements regarding accusatory instruments is necessary for the proper handling of a criminal case.

The filing of an accusatory instrument usually is performed after the defendant has been arrested and immediately prior to the arraignment. The filing commences the criminal action against the accused.³²² With the exception of hearsay pleading defects in the factual portion of a local criminal court information,³²³ a valid and sufficient instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.³²⁴ It is an accusatory instrument—felony or misdemeanor complaint (CPL § 1.20(1)) containing an accusatory portion that charges a defendant with a designated Penal Law offense (CPL § 100.15(2)) and a factual portion that alleges “facts of an evidentiary character supporting or tending to support the charges” (CPL § 100.15(3)) and establishing “reasonable cause” to believe that the defendant committed the charged offense (CPL § 100.40(4)(b))—all of which means “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof,” commonly “referred to as the ‘prima facie case requirement.’ ”³²⁵ Note that the words “supporting” and “tending to support” in CPL § 100.15(3) are separated by the disjunctive “or.” There is a difference between “supporting” and the more expansive words “tending to support.”

“A misdemeanor (or felony complaint reduced on consent to a misdemeanor complaint), however, may not serve as the basis for a prosecution unless the accused expressly waives the right to be prosecuted by information.”³²⁶ If a court does not advise a defendant that he has the right to be prosecuted by a misdemeanor information (rather than on a misdemeanor complaint), there is a jurisdictional wrinkle which is that the misdemeanor complaint “must be treated as an information for the purpose of assessing its jurisdictional sufficiency.”³²⁷ Involving subject matter jurisdiction, CPL article 100’s requirements are strictly construed but not to the point of “a mandatory catechism.”³²⁸ Compare “a conclusory statement that a substance seized from a defendant was a particular type of controlled substance” with the same statement supplemented by “based on his experience as a police officer as well as his training in the identification and packaging of controlled substances and [drugs].”³²⁹ “Given a fair and not overly restrictive or technical reading,” the latter conjunctive statement, if true, is enough to establish an element of a narcotics offense. The core concerns are whether a defendant is given sufficient factual notice so that he can prepare a defense, and whether the factual averments are detailed enough to prevent double jeopardy.³³⁰ For a narcotics offense, for but one example, the prima facie case need not—but advisedly may well—physically describe what the substance(s) looks like. A mandatory description of the appearance of a seized...