MOTION TO DISMISS COMPLAINT FOR FACIAL INSUFFICIENCY

One possible means of getting a criminal charge dismissed in New York is to have your lawyer prepare a motion to dismiss for facial insufficiency.   A complaint is facially insufficient when it fails to allege all of the elements of the charge with non-hearsay factual allegations.

Unfortunately, prosecutors often use time-tested boilerplate language when drafting criminal complaints.  The boilerplate language usually contains the elements necessary to withstand a facial sufficiency challenge to the complaint and this makes getting these motions granted difficult.  But
nevertheless, a motion to dismiss is often it is worth a try.   but it requires a keen experienced eye of a good criminal defense lawyer to be able to point out a deficiency in a complaint.

For example, below is actual text from a motion to dismiss a trespassing charge  on grounds of facially insufficiency:

1. "An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law § 100.15(3); People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986). Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b),(2). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1980).   People v. Guzman, 2004 NY Slip Op 24486, 3 (N.Y. Misc. 2004)
2. In People v. Moore, 5 N.Y.3d 725, (N.Y. 2005) The Court held that an information would not be facially sufficient with regards to trespass in the third degree, under 140.10(a) unless the information contained non-hearsay factual allegations that the person:
   1) knowingly entered or remained unlawfully in a building or upon real property which was
   2) fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 (a). Id.
3. In Moore, the Court of Appeals upheld the dismissal for facial insufficiency of an information which charged a violation of Penal Law 140.10(a).  While the Information in Moore satisfied the first element in that it alleged that the defendant entered a public building located on the campus of the State University of New York at Buffalo on September 4, 2002 in violation of a “person non grata" letter, it did not allege that the building was enclosed.  Moore at 726.
4. In Moore, the Court held the Information to be facially insufficient, stating::
5. 
   

"[A]n information which fails to contain nonhearsay allegations establishing 'if true, every element of the offense charged and the defendant's commission thereof' … is fatally defective" (People v Alejandro, 70 N.Y.2d 133, 136, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987] [internal citation omitted]). Since the information and supporting deposition here fail to allege facts establishing that the campus building defendant entered into was in any way "fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 [a])--a required element of the crime--it was insufficient to establish criminal trespass in the third degree (see CPL 100.15 [3]; 100.40 [1] [c]). Thus, the information was properly dismissed as facially insufficient.


People v. Moore, 5 N.Y.3d 725, 727 (N.Y. 2005)

 

1. The Moore Decision was followed by the Appellate Term for the First Department in People v. Courtney, 2007 NY Slip Op 51000U, 1 (N.Y. App. Term 2007) where the Court held that:
   1. The informations charging defendants with criminal trespass in the third degree were properly dismissed as facially insufficient, since they failed to allege facts establishing that the plaza area at issue was "fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10[a]; see People v Moore, 5 NY3d 725, 727, 833 N.E.2d 192, 800 N.Y.S.2d 49 [2005]). The unadorned description of the area in which defendants are said to have trespassed as an "enclosed plaza" served merely to track the general language of the statute, without adding "facts of an evidentiary character supporting or tending to support the charge[]" (CPL 100.50[3]; see People v Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987]).
      
      
      
      People v. Courtney, 2007 NY Slip Op 51000U, 1 (N.Y. App. Term 2007)

 In the instant case, the information fails to establish that the Courtyard was in any way fenced or enclosed in a manner designed to exclude intruders.  Thus, on the authority of Moore, Supra and its progeny, the information should be dismissed on grounds that it is facially insufficient.

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J John Sebastian Buffalo NY Attorney