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[T] People v. Farra S.6/1/2004
30.00 or § 230.05 to charge her with a class "B" misdemeanor, and (2) fails to establish that she was loitering for the purpose of prostitution.
(1) Penal Law § 240.37(2) as a Class B Misdemeanor
Where the existence of a prior conviction determines the level of the crime, proof of the prior conviction constitutes an element of the crime. See People v Van Buren, 82 NY2d 878 (1993); People v Cooper , 78 NY2d 476 (1991). However, establishment of the prior conviction sufficient to sustain the charge of an enhanced offense may not be accomplished by an indictment. CPL § 200.60(1). Instead, the District Attorney is required to file a special information charging the defendant was previously convicted of a specified offense. CPL § 200.60(2). This procedure is specifically applicable to felony offenses. There is, however, no parallel or analogous statute for criminal court accusatory instruments and the decisional law presents varying views on the proper procedural mechanism to establish a predicate conviction necessary to prosecute for an enhanced misdemeanor offense.
For example, in People v Peacock, 193 Misc2d 672 (App Term, 2nd Dept. 2002), the court held that the predicate convictions necessary to charge a defendant with the misdemeanor of driving while impaired may be alleged either in the initial accusatory instrument or in a prosecutor's information. In so holding, the Appellate Term necessarily concluded that § 200.60 was inapplicable to misdemeanor prosecutions. Cf. People v Denise L., 159 Misc 2d 1080 (Crim Ct, Queens County 1994) [CPL § 200.60 requires filing of special information to charge defendant with loitering for the purpose of prostitution as class B misdemeanor].
The court in People v Powlowski, 172 Misc 2d 240 (City Court, City of Rochester 1997) similarly concluded that CPL § 200.60 was not applicable to accusatory instruments filed in local criminal courts. However, that court held that where a defendant is charged with driving while impaired as a misdemeanor, the predicate conviction must be alleged in the accusatory instrument, and not in a prosecutor's information. The court reasoned that had the Legislature intended for CPL § 200.60 to apply to local criminal court accusatory instruments it would have included analogous language in CPL Article 100 or referenced section 200.60 to reflect its intention, as it had in analogous sections of the CPL. The court observed further, by way of examples, that the Legislature included language in CPL § 100.35 [form and content of a prosecutor's information], which references CPL § 200.50 [form and content of indictment] and CPL §§ 200.20 and 200.40 [joinder and consolidation of indictments]. CPL § 100.45(1), which governs severance, consolidation, amendment and bills of particulars with respect to criminal court accusatory instruments, references provisions of the CPL governing indictments. CPL § 100.45(1), provides that " here appropriate, the provisions of sections 200.20 and 200.40... apply to informations, to prosecutor's informations, and to misdemeanor complaints."
A similar view was expressed by the court in People v Jackson, 177 Misc 2d 657 (Crim Ct, NY County 1998), which held that while "the filing of a special information may be an acceptable way to charge the prior conviction," that method was applicable only to indictments. The court held that, therefore, the People were required to allege the defendant's prior conviction in the factual portion of the complaint or in a supporting deposition.
As in the instant case, the defendant in Jackson was charged with Loitering for the Purpose of Prostitution as a class B misdemeanor by an information which did not allege a prior conv
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