You are here: / / THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION...

THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department, reversing defendant’s criminal mischief conviction, determined the underlying statute includes an exception which must be affirmatively pleaded. The exception was not affirmatively pleaded in the Superior Court Information (SCI):

“In order to determine whether a statute defining a crime contains an exception that must be affirmatively pleaded as an element in the accusatory instrument or a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial, a court must look to the language of the statute itself” … . To that end, “legislative intent to create an exception that must be affirmatively pleaded has generally been found when the language of exclusion is contained entirely within a Penal Law provision” … . Penal Law § 145.05 (2) provides that “[a] person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . damages property of another person in an amount exceeding [$250]” … . Inasmuch as the qualifying language is contained within the statute itself, we agree that such language constitutes an exception. Given that count 1 of the 2016 SCI did not allege that defendant had neither a right to cause the property damage at issue nor a reasonable ground to believe that she had such right, that count — charging defendant with criminal mischief in the third degree — is jurisdictionally defective … . People v West, 2023 NY Slip Op 01921, Third Dept 4-13-23

Practice Point: If a criminal statute includes language which is deemed an “exception,” the exception must be affirmatively pled. The failure to affirmatively plead an exception renders the count jurisdictionally defective.

 

You might also like
PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT).
Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent
Parol Evidence Demonstrated What Appeared to Be a Contract Was Not—There Was No Meeting of the Minds Re: the Consideration for the Contract
THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST “ASSISTED LIVING” AS OPPOSED TO “RESIDENTIAL HEALTH CARE” FACILITIES; COMPLAINT PROPERLY DISMSSED (THIRD DEPT).
Sufficient Evidence Supported Finding that Sole Shareholder, Who Did Not Oversee the Day to Day Operations of a Corporation, Was a “Responsible Person” Who Could Be Held Personally Liable for the Failure to Pay Corporate Sales and Use Taxes
THE FACT THAT DEFENDANT DID NOT APPEAL HIS 2006 CONVICTION ON THE GROUND HE WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION DID NOT PREVENT DEFENDANT FROM RAISING THAT ISSUE TO CHALLENGE THE CONSTITUTIONALITY OF THE 2006 CONVICTION IN THE CONTEXT OF A PERSISTENT VIOLENT FELONY OFFENDER PROCEEDING (THIRD DEPT).
Fraud Cause of Action Seeking Only Lost Profits as Damages Must Be Dismissed
The Term “Release” (Re Hazardous Substances) Did Not Apply to Migration of Hazardous Substance to Neighbor’s Property Underground​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE ATTORNEY AFFIDAVIT SUBMITTED IN SUPPORT OF THE SUMMARY JUDGMENT MOTION WAS... THE DEFENDANTS’ FAILURE TO APPEAR AT THE SCHEDULED EXAMINATIONS UNDER...