People v. Edward Hardy
Issue: May the prosecution amend an erroneously pleaded fact—here, the date of the alleged incident—in a misdemeanor complaint or information?
Held: No. In the Court’s words, “It is the People’s responsibility to obtain a sworn statement with the correct factual allegations and proceed on a superseding instrument.”
Further, this is a jurisdictional defect that can be raised regardless of guilty plea or objection.
CAL observes: A mere half-century after the C.P.L. replaced the Code of Criminal Procedure, the Court was called upon to decide whether pre-C.P.L. case law allowing factual amendment where there is no “surprise or prejudice” to the defendant was proper. In a fractured decision, a four-judge majority held that the C.P.L. imposes more procedural checks than did its predecessor regime on the prosecution, which cannot simply ask for amendment of an instrument except to add new charges also supported by the original factual allegations. If the allegations themselves are incorrect, they cannot be amended. (One dissent, by Judge Garcia, argued that this was unnecessary formalism; in Judge Rivera’s separate dissent, she confusingly asserted that while she agreed with the majority that this was an unwaivable jurisdictional issue, she nonetheless agreed with the Appellate Term’s reasoning for rejecting Mr. Hardy’s challenge.)
The Court examined the C.P.L.’s text—specifically, sections100.45(2)–(3) and 200.70—to find that it plainly allowed only for limited, enumerated factual amendments to indictments, prosecutors’ informations, and superior court informations, and to accusatory portions of misdemeanor complaints and informations. This makes sense: a prosecution can commence on these misdemeanor instruments, without the additional check of a grand jury, so facts alleged must be reliable. The Bartlett Commission materials confirmed as much: early versions of C.P.L. § 100.45 would have allowed for factual amendments to misdemeanor informations and complaints, but this more liberal amendment policy was rejected in subsequent versions, including the one ultimately enacted. (One important take-away for practitioners litigating before the Court is that the Commission’s reports from the 1960s, which helped to usher in our current criminal procedural regime, remain salient to this day, and continue to inform how to interpret a range of undecided issues in New York State law.)
As a practical matter, it is hard to know what kind of impact this ruling will have. Prosecutors will still be able to re-file charges. But, they must nonetheless jump through the additional hoop of getting a sworn statement with the corrected factual information; courts will not simply “presume” facts that are not actually alleged in charging instruments.