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
CLAIMANT IS ENTITLED TO SIMULTANEOUSLY RECEIVE AN AWARD FOR A SCHEDULE LOSS OF USE AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).
Failure to Wear a Safety Harness Could Not Constitute the Sole Proximate Cause of Plaintiff’s Fall (Caused by the Failure of a Scaffolding Plank)—Therefore Plaintiff Entitled to Partial Summary Judgment on the Labor Law 240(1) Claim
ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.
Question of Fact About Resort Owner’s Duty to Maintain Walkways in Winter Despite Claim the Resort Was Closed in the Winter Months
THE INDIVIDUALS WITH DISABILITIES EDUCATION LAW REQUIRES SCHOOL DISTRICTS TO PROVIDE FREE EDUCATION TO INDIVIDUALS WITH DISABILITIES UNTIL THE DAY BEFORE THEY TURN 22 (THIRD DEPT).
EMPLOYER’S ANSWER TO A QUESTION ON ITS APPLICATION FOR A BOARD REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S AWARD OF BENEFITS WAS ADEQUATE AND SHOULD NOT HAVE BEEN THE BASIS OF THE BOARD’S DENIAL OF THE APPLICATION; THE QUESTION CONCERNED WHEN THE EMPLOYER’S OBJECTION TO THE RULING WAS MADE (THIRD DEPT).
DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION SUFFICIENT TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, A WAIVED AFFIRMATIVE DEFENSE MAY BE CONSIDERED IN OPPOSITION TO SUMMARY JUDGMENT WHERE THE MOVING PARTY IS NOT SURPRISED AND HAS AN OPPORTUNITY TO RESPOND (THIRD DEPT).
PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT).

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 © 2026 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...