Factual Errors in Criminal Complaints Cannot Be Cured by Prosecutors

In misdemeanor practice across New York State, there comes a time when there are factual errors made in a criminal complaint or information (the accusatory instrument). This post discusses what happens in those situations.

One common mistake, for example, is that where the prosecution is charging someone with operating a motor vehicle impaired by drugs (Vehicle and Traffic Law 1192[4]), the police might type the wrong drug in the accusatory instrument.  This was the case in a recent decision issued by the Appellate Term in People v Matera, 2022 NY Slip Op 50289(U), where the complaint alleged the defendant was impaired by oxycodone when it was really fentanyl.

Prior to 2020, the way this would be "fixed" is by the Prosecutor making a motion to fix the factual error in the complaint. Normally, this was an oral motion to amend the complaint to fix the error. The court would routinely grant these motions to fix ministerial errors.

In any event, that is not the proper way for a factual error to be amended.

What is the law that controls?

Criminal Procedure Law 100.45(3) precludes prosecutors from curing factual errors or deficiencies in informations and complaints via amendment (see People v Hardy, 35 NY3d 466).  Instead, the Criminal Procedure Law requires that a new superseding accusatory instrument supported by a sworn statement containing the correct factual allegations to cure any factual errors or deficiencies.

As the Court of Appeals in Hardy described: the legislature ... decided that no one but an affiant should be permitted to alter the factual allegations previously sworn to by an affiant.

As a result, criminal courts lack the authority to grant a motion to amend the factual portion of an information to allege new facts.