People v. Cespedes (Jose)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 22, 2018
• Docket: 2018 NYSlipOp 50069(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Jose Cespedes, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John J. DeLury, J.H.O.), rendered February 27, 2014, after a nonjury trial, convicting him of public urination, and imposing sentence.

Per Curiam.

Judgment of conviction (John J. DeLury, J.H.O.) rendered, February 27, 2014, affirmed.

The accusatory instrument was not jurisdictionally defective. Police allegations that, on a particular date and time, and in "f/o 231 Edgecombe Avenue," defendant was "observed urinating in public view," were sufficient for pleading purposes to charge defendant with public urination (see People v Gomez, 55 Misc 3d 144[A], 2017 NY Slip Op 50641[U] [App Term, 1st Dept 2017], lv denied 30 NY3d 980 [2017]). The citation in the accusatory instrument to an incorrect subsection of New York City Administrative Code

§ 16-116 - that is, § 16-116(1) rather than § 16-116(6) - is disregarded as mere surplusage, since the instrument fully advised defendant of the facts relied upon to constitute the alleged violation (see People v Love, 306 NY 18, 23 [1953]; People v Hare, 66 Misc 2d 207 [App Term, 1st Dept 1971]; see also People v Jackson, 128 AD3d 1279 [2015], lv denied 26 NY3d 930 [2015]; People v Rodriguez, 97 AD3d 246 [2012], lv denied 19 NY3d 1028 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 22, 2018