147 Misc. 2d 381 | N.Y. City Crim. Ct. | 1990
OPINION OF THE COURT
The defendant was originally charged with the felonies of unauthorized practice of a profession in violation of Education
Defendant moves to dismiss the information on several grounds. First, defendant argues that the Education Law precludes the District Attorney from commencing a prosecution under these sections where the conduct alleged has not been first reported to the State Department of Education for that Department’s investigation and referral to the Attorney-General of the State for prosecution. Second, defendant moves to dismiss the information arguing that it is legally insufficient in that it contains uncorroborated allegations of admissions of the defendant to establish the element of the offense that the defendant was unlicensed or the others aided were unlicensed. Finally, defendant moves to dismiss the information pursuant to CPL 30.30, on the grounds that the People have not announced their readiness for trial within 180 days of the commencement of the criminal action.
Defendant’s Motion that the District Attorney is Barred from Prosecuting the Instant Case
Defendant’s motion to dismiss, alleging that, by virtue of the Education Law, the District Attorney does not have the authority to prosecute the offenses charged without having first referred the allegations to the State Department of Education for an investigation by that Department, presents a case of first impression. No decisional authority on this issue is cited by defendant or the People, nor has any been found by this court.
State Education Law § 6514 (1) and (2) provide:
"(1) All alleged violations of sections [6512] or [6513] of this article shall be reported to the department [of Education] which shall cause an investigation to be instituted. If the investigation substantiates that violations exist, such violations shall be reported to the attorney general with a request for prosecution.
"(2) The attorney general shall prosecute such alleged offenses in the name of the state, provided, however, in the event of alleged violations of article [155] of this title [the practice of*384 the profession of massage] occurring in cities with a population of one million or more, [the] district attorney may prosecute such alleged offenses in the name of the state”.
Defendant does not challenge the jurisdiction of the District Attorney to prosecute this case. Rather, defendant argues that the allegations were not referred to the Education Department for its investigation prior to the District Attorney commencing the prosecution, and, therefore, such constitutes a bar to the prosecution. The People concede that the allegations were not referred to the Education Department prior to the commencement of the prosecution.
It is this court’s view that, in the absence of a specific statutory provision limiting the authority of a prosecutor to prosecute an offense, a prosecutor is not barred from prosecuting an offense occurring within his jurisdiction. While Education Law § 6514 requires a referral to the Education Department, it does not provide that noncompliance with that mandate bars prosecution by the Attorney-General or District Attorney. Had the Legislature intended to bar prosecutions that had not been preceded by an investigation by the Education Department, it would have specifically provided so. The referral provision appears intended to provide a mechanism for requiring the Education Department to investigate allegations of unlicensed practice of a profession when such allegations are referred to it. However, the District Attorney is not precluded from investigating such an allegation on his own initiative.
Education Law § 6514 (2) clearly authorizes the District Attorney to prosecute the offenses charged here, as New York City is a city having a population of over 1,000,000 persons. The absence of a referral of the allegations to the Education Department does not constitute a bar to the prosecution. Accordingly, defendant’s motion to dismiss is denied.
Defendant’s Motion to Dismiss Alleging Facial Insufficiency
Before addressing defendant’s claim that the information is legally insufficient in that it contains insufficient allegations of the lack of a license to engage in the practice of massage, this court observes that as to the second count, an attempt to commit the crime of unauthorized practice of a profession in violation of Education Law § 6512 (2), the accusatory instrument fails to allege facts constituting that offense. Education
Defendant argues that the information is not sufficient on its face and is, therefore, defective as it does not contain a supporting deposition from the New York State Department of Education attesting to the fact that defendant or those she aided or abetted to attempt to engage in the practice of massage were unlicensed. The only allegations in the information concerning the lack of a license are the following allegations: "Deponent [police officer] is informed by defendant that she has no license to practice massage [and] deponent observed no Department of Education license to practice massage posted at the above premises, and neither defendant nor [other person held out as able to perform the massage] produced one.”
To be legally sufficient, a misdemeanor information and any supporting depositions filed therewith must set forth nonhearsay allegations of facts which "establish, if true, every element of the offense charged”. (CPL 100.40 [1] [c]; 100.15 [3]; People v Alejandro, 70 NY2d 133, 136 [1987].)
Two significant issues are presented in this case by defendant’s motion to dismiss the information. First, if an element of the offense is based on defendant’s admission, does such constitute a "non-hearsay” allegation of fact. Second, does the corroboration requirement of CPL 60.50 relating to required corroboration of admissions apply to the legal sufficiency of informations. This court holds that a confession is a "non-hearsay” allegation of fact and that the confession must be corroborated in an information for that information to be legally sufficient.
The "non-hearsay” requirement of CPL 100.40 has been construed to mean any evidence that would be admissible at trial even though such admissibility is subject to challenge by means of pretrial motions. (People v Alvarez, 141 Misc 2d 686
Accordingly, in the instant case, this court finds that the allegation of defendant’s admission that she did not possess a license to practice massage is a nonhearsay allegation of fact supporting one element of the offense of an attempt to commit the offense of a violation of Education Law § 6512 (1), the element that the defendant be a person not authorized to practice the profession of massage. Before addressing the other elements of this offense, this court must rule on yet a further issue concerning the use of admissions in an information. While this court has ruled that a defendant’s admission may be alleged in an information to satisfy the requirement that the instrument contain nonhearsay allegations of fact establishing the elements of the offense, it must determine whether an information containing an admission, to be legally sufficient, must contain allegations of fact satisfying the requirement of CPL 60.50 that an admission be corroborated by independent proof that the offense was committed.
CPL 100.40 defines a legally sufficient information. That section requires that the nonhearsay allegations of fact "establish * * * every element of the offense charged”. In People v Alejandro (70 NY2d 133, 136, supra), the court held that this
CPL 60.50 requires the same corroboration for a conviction
Accordingly, applying the corroboration requirement of CPL 60.50 to the information in the instant case, this court determines that the information does allege facts independent of the defendant’s admissions which prove that the offense charged, an attempt to commit the offense of a violation of section 6512 (1) of the Education Law, was committed. In particular, the accusatory instrument alleges that no license to practice massage was posted at the premises and that the defendant did not produce such a license. This allegation, while not conclusively establishing that the defendant was unlicensed, as she could have had a license even though it was not displayed or produced, is sufficient to satisfy the corroboration requirement of CPL 60.50. (See, People v Booden, 69 NY2d 185 [1987]; People v Cuozzo, 292 NY 85.)
With respect to the other elements of the offense, this court construes Education Law § 6512 (1) to require both that the defendant be a person not authorized to practice massage and that the person she aided or abetted also be unlicensed. The only allegation concerning whether the person that defendant offered to have give the deponent police officer a massage was licensed is the allegation that "no Department of Education license to practice massage was posted at the above premises and neither defendant nor [the person held out as being able to perform the massage] produced one.” While the failure to produce a license provides reasonable cause that the person was not licensed and satisfies CPL 100.40 (4) (b), it does not "establish” that element of the offense as is required by CPL 100.40 (1) (c) to make the instrument an information because the person could in fact be licensed even though the license was not produced upon request or was not displayed. (See, however, People v Rodriguez, 140 Misc 2d 1 [Crim Ct, NY County 1988], which appears to express the view, in dicta, that the failure to display a license may provide both reasonable
Accordingly, the accusatory instrument in this case is deficient in that an element of the offense, that the person aided or abetted by defendant was unlicensed, is not supported by allegations of fact which, if true, establish that such person was unlicensed. The accusatory instrument is, therefore, not an information, but rather, is a complaint. Provided the time in which the People must be ready for trial pursuant to CPL 30.30 has not expired, this court will give the People an opportunity to file a supporting deposition establishing that the person aided and abetted by defendant was not licensed. In People v Alejandro (70 NY2d 133, 140, supra) Judge Bellacosa stated, in a concurring opinion, that "the State can easily and promptly amend or supersede and pursue a proper prosecution on a jurisdictionally valid accusatory instrument (CPL 100.45 [2], [3]; 100.50 [1])” where the accusatory instrument is facially insufficient.
[Portions of opinion omitted for purposes of publication.]