When Your Criminal Court Accusatory Instrument Contains Errors

October 20, 2020

By Jill K. Sanders, Esq.

Lots of paperwork gets filed when you’re charged in criminal court. For example, the accusatory instrument, supporting deposition, bill of particulars, order of protection. With so much paperwork, mistakes can be made.

What happens when the accusatory instrument charges you with a crime, but the date is incorrect? Can a prosecutor just ask the court to take note of the correction? Or must something else be done? In People v. Hardy, the Court of Appeals considered the issue.


Facts of the Case

On January 25, 2015, the defendant Mr. Hardy was accused of going to the home of his wife in Queens. She claimed he yelled, screamed, used foul language, and refused to leave. Meanwhile, there was a two-year order of protection issued on September 10, 2013 in favor of his wife. Specifically, the order directed him to refrain from harassing his wife and to stay away from her home.

Mr. Hardy was arrested that day. Then, the following day, he was arraigned on an accusatory instrument charging him with Criminal Contempt in the Second Degree and Harassment in the Second Degree. He pled not guilty to the charges.

At court four days later, the prosecutor filed a Domestic Incident Report (“DIR”) that listed the date of the offense as “January 25, 2015.” However, the second page of the DIR listed the date as “January 25, 2014” and was partially illegible. Notably, the accusatory instrument alleged the incident occurred on “October 25, 2015” – a date occurring some nine months in the future and after the expiration of the order of protection.

The prosecutor moved to amend the date of the incident as listed on the charging document. Despite defense counsel’s objection, the court granted the prosecutor’s motion. Moreover, the court held this was a typographical error. Thereafter, Mr. Hardy pled guilty to Criminal Contempt in the Second Degree and received a ninety-day jail sentence.


Can the Prosecutor Amend an Accusatory Instrument?

Can an accusatory instrument be amended by adding to or altering the factual allegations? Prior case law allowed factual amendments to informations if the amendment did not surprise or prejudice the defendant.

Yet that case law preceded enactment of the Criminal Procedure Law (“CPL”). Namely, two sections of the CPL list what amendments which can be made. CPL § 200.70 permits amendments to indictments and superior court informations. Another section, CPL § 100.45, authorizes amendments to misdemeanor informations and complaints. As relevant to Mr. Hardy’s case, the Court considered how CPL § 100.45 would apply.


The Court’s Holding on Amending the Accusatory Instrument

In its decision, the Court of Appeals held that CPL § 100.45 only allows for the non-factual, accusatory portion of an information to be amended. Specifically, it permits the prosecutor to amend the accusatory part of an information to add additional charges if those added charges are supported by the original factual allegations.

However, in Mr. Hardy’s case, the prosecution was seeking to amend the factual portion of the instrument – not to charge an additional count. In sum, the law does not authorize the amendment sought in Mr. Hardy’s case. Based on the Court of Appeals analysis and holding, Mr. Hardy’s conviction was reversed and the accusatory instrument was dismissed.