In Hall, the nature of the dynamic between the defendant and the complainant during the course of the incident that gave rise to the charge was somewhat murky, and the complainant's personal belief as to whether the defendant had the "intent to harass, annoy or alarm" (Penal Law § 240.26) would have been illuminating.Summary of this case from People v. Dreyden
Argued November 16, 1979
Decided December 13, 1979
Appeal from the Cortland County Court, CHARLES J. MULLEN, J., DONALD F. EATON, J.
David W. Perfetti for appellant.
Robert F. Jones, District Attorney (Karen F. McGee of counsel), for respondent.
The order of the County Court should be reversed and the information dismissed.
It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime (People v Case, 42 N.Y.2d 98, 99; People v Harper, 37 N.Y.2d 96, 99; People v McGuire, 5 N.Y.2d 523, 525). In order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be alleged (CPL 100.40, subd 1, par [c]; 100.15, subd 3).
Here the information charging harassment recited only that defendant, who it also alleges indicated that his desire was that the complainant leave the defendant's premises, "did strike, shove and otherwise subject [the complainant] to physical contact and threatened * * * physical harm." It failed to specify an essential element of the crime, which is that the acts be done "with intent to harass, annoy or alarm" (Penal Law, § 240.25). Absent such an allegation, the acts complained of did not constitute criminal conduct and, hence, defendant's conviction was jurisdictionally defective (see People v Case, supra; People v McGuire, supra).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.