People v. Holmes , 93 N.Y.2d 889 ( 1999 )

93 N.Y.2d 889 (1999) 711 N.E.2d 965 689 N.Y.S.2d 687

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,
v.
KATHLEEN HOLMES, Respondent.

Court of Appeals of the State of New York.

Argued March 25, 1999. Decided April 29, 1999.

Denis Dillon, District Attorney of Nassau County, Mineola (Daniel T. Butler and Peter A. Weinstein of counsel), for appellant.

Charles M. Newell, Quogue, for respondent.

Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Term should be reversed and the matter remitted to that court for determination of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

Charged with petit larceny for shoplifting in a department store, defendant was arraigned on an information verified by complainant, the store detective who apprehended her. The accusatory part of the information begins with complainant's name ("being duly sworn, deposes and says"), describes the acts constituting a violation of Penal Law § 155.25, and closes with a printed jurat reading "Subscribed and sworn to before me this 25 day of May, 1994." The instrument was signed by complainant and the jurat was signed by a police sergeant. At trial, complainant testified that he had signed the information but had not "sworn" to the truth of its contents, and defendant moved to dismiss the accusatory instrument, alleging improper verification.

After a verdict of guilt, the court held a hearing regarding the validity of the verification. Complainant testified that what he had meant in his trial testimony was that he "did not raise [his] hand and swear." He explained that while before a police officer, he had read and signed the information, knowing that it was a legal document and that he could be subject to the penalty of perjury for any false statements. The trial court denied defendant's dismissal motion, but the Appellate Term reversed.

An information may be verified if "sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers" (CPL 100.30 [1] [b]). There is no additional requirement that complainant raise his hand and orally recite an oath. It was sufficient for him to read and sign the instrument in front of the officer, appreciating the significance of his actions. Thus, complainant properly verified the accusatory instrument (see, People v Stewart, 92 NY2d 965; see also, CPL 100.40 [1]; 100.15; Matter of Edward B., 80 NY2d 458).

Order reversed and case remitted to the Appellate Term, Ninth and Tenth Judicial Districts, for further proceedings in accordance with the memorandum herein.