(dissenting). Without any formal information or complaint having been filed against him, and indeed without any charge of any kind specifying acts sufficient to constitute a crime, defendant, a youth of nineteen, unrepresented by counsel, was convicted in the City Court of Corning upon his plea of guilty to the crime of violating section 43 of the Penal Law.
Filed with the City Court was a statement — sworn to before a notary — which defendant had made shortly before to the police and in which he asserted that he had done certain acts on two different days. The return of the city judge who had presided over the court, explicitly reciting that “No information was filed ’ ’, establishes not only that the statement was not treated as an information, but that it was following its submission and after a discussion before the court that defendant was charged orally with a violation of section 43. It was at that point that ‘ ‘ the arrest was formally made and entered upon the Police and Court records.” There is no showing in the return, however, that the oral charge was supplemented by any information or complaint in writing, or by any specification whatever — oral or in writing — of the acts charged against defendant.
We all seem to be agreed that prosecution for a misdemeanor can proceed only upon a written information designating the offense charged and setting out the acts allegedly committed by the defendant constituting that offense — and, indeed, there can be no doubt of that proposition. However, Judge Conway, writing for affirmance {supra, p. 40), asserts that defendant’s self-accusatory statement may be treated as the essential information, while Judge Desmond, in his opinion {supra, p. 41), urges that the necessity for such an information was waived by defendant’s act of pleading guilty. I cannot agree with either hypothesis. As to the first, defendant’s statement was not regarded, and could not be regarded, as the information demanded by law. As to the second, compliance with the basic elements of an information is a jurisdictional requirement which cannot be waived or dispensed with by a plea of guilty.
Section 145 of the Code of Criminal Procedure defines an information as “ the allegation made to a magistrate, that a person has been guilty of some designated crime.” Implicit in that definition, as this court long ago observed, is the requirement that the allegation be presented in writing and under oath. *44(See People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 389.) Section 699 of the Code, applicable generally to misdemeanor prosecutions in courts of special sessions outside the city of New York, provides that the defendant, upon arraignment, must be informed ‘ ‘ of the charge against him ’ ’ and of his right to counsel, and that “ the charge * * * must be distinctly read to him, and he must be required to plead thereto ”. As was pointed out in an early decision of the General Term, the obvious inference from the direction that the charge be read to the defendant, is that the charge — that is the 1 ‘ allegation ’ ’ of section 145 — cannot be an oral one, but must necessarily be in writing. (See People ex rel. Baker v. Beatty, 39 Hun 476, 477.)
“ Real notice of the true nature of the charge ” against the defendant in a criminal case has been described as “ the first and most universally recognized requirement of due process ”. (Smith v. O’Grady, 312 U. S. 329, 334.) In that regard, the courts have scrupulously insisted that “ a person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court.” (Albrecht v. United States, 273 U. S. 1, 8; see, also, Weeks v. United States, 216 F. 292, 293 [C. A. 2d], cert. den. 235 U. S. 697; Clark, Handbook of Criminal Procedure [1895], p. 104.) In our own court, we have similarly enforced the requirement, in misdemeanor prosecutions both in the Court of Special Sessions of the City of New York (People v. Zambounis, 251 N. Y. 94, 97) and in courts of special sessions outside of New York City (People v. Grogan, 260 N. Y. 138, 142), that the prosecution must be based upon an information which states the offense charged and sets out “ the acts constituting the crime with the same clarity as an indictment ”. In requiring the same exactness in. this regard in an information as in an indictment, we necessarily assumed that the information would have the same formal embodiment in a writing as an indictment. (Cf. People v. Grogan, supra, 260 N. Y. 138, 142.)
Indeed, these formal requirements have their roots in the common law of England. From the earliest times in England an information charging a misdemeanor had to be in writing. There were two kinds of such informations: in one category, informations filed by the Attorney-General, generally for *45offenses more immediately against the king or the public safety; in the other, informations filed by an official known as the Master of the Crown Office, through whom, for the most part, prosecutions at the suit of private complainants were initiated. (See Weeks v. United States, supra, 216 F. 292, cert. den. 235 U. S. 697; 1 Bishop, New Criminal Procedure [4th ed., 1895], p. 427; Clark, Handbook of Criminal Procedure, op. cit., pp. 128-129.) Eestrictions were at an early date imposed upon the presentation of informations by the Master of the Crown Office. (4 «fe 5 Will, «fe Mary, ch. 18.) In essence, however, there were certain fundamental requisites common to both types of prosecutions. In each case, the information had to be a writing “ filed of record,” and defendant was entitled to the same notice as in the case of an indictment. (See Blackstone, Commentaries on the Law [Gavit ed., 1941], bk. 4, ch. 23, pp. 880-881.) Hawkins (Pleas of the Crown, bk. 2, ch. 26, § 4), in discussing the form of an information, wrote that ‘1 an Information differs from an Indictment in little more than this, that the one is found by the oaths of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it, whatsoever certainty is requisite in an indictment, the same at least is necessary also in an information, and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.”
Though there may perhaps be warrant for greater informality in the case of prosecutions for offenses below the grade of misdemeanors (cf. People v. Grogan, supra, 260 N. Y. 138, 141; Reg. v. Millard, 6 Cox C. C. 150), similar relaxation of standards cannot be sanctioned where, as in this case, “ we are dealing with a misdemeanor tried before a Court of Special Sessions * * * a crime, not one of those minor offenses dealt with summarily by magistrates.” (People v. Grogan, supra, 260 N. Y. 138, 141-142.)
Some confusion has crept into the cases through the failure to distinguish between the matter of securing jurisdiction over the person of the defendant and the matter of proceeding with the prosecution after the defendant has been brought before the court. (Cf., e.g., People v. Carter, 88 Hun 304, 306.) Where a defendant is lawfully arrested without a warrant, or other*46wise voluntarily submits himself to the jurisdiction of the court, that dispenses with any need for a written information or deposition as a predicate for the issuance of a warrant of arrest. The fact that the court has properly secured jurisdiction of the person of the defendant cannot, however, eliminate the requirement that “a formal and sufficient accusation ” be lodged against him as the basis for proceeding with the prosecution. (See Albrecht v. United States, supra, 273 U. S. 1, 8.) As has been pointed out in the leading case of Weeks v. United States (supra, 216 F. 292, 293, cert. den. 235 U. S. 697), “ A court can acquire no jurisdiction to try a person for a criminal offense unless he has been charged with the commission of the particular offense and charged in the particular form and mode required by law. If that is wanting, his trial and conviction is a nullity, for no person can be deprived of either life, liberty, or property without due process of law.”
It is urged that defendant’s statement to the police may itself be regarded as the requisite information in writing. As noted, however, the city court did not so view the statement. But, beyond that, I am unable to understand how a self-accusatian can in any event constitute a “ charge ” in the legal sense, or, for that matter, in any other sense1, for it is of the very essence of such charge that someone other than the accused — either a public officer or a private complainant — shall present the accusation to which the defendant must answer. It would be an anomaly in our “ accusatorial ” system of criminal law enforcement (see Watts v. Indiana, 338 U. S. 49, 54), to sanction prosecution on the basis of a self-accusatory statement by the defendant rather than a formal accusation proffered on behalf of the People. Any such extraordinary method of procedure could easily be productive of great abuse, with consequences prejudicial to the People as well as to an accused. It is noted in Stephen’s History of the Criminal Law of England (Yol. 1, p. 244) that in England “ since the Norman conquest * # * there have been * # # three modes of accusation, namely, appeal or accusation by a private person, indictment or accusation by a grand jury, and informations which are accusations either by the Attorney-General or by the Master *47of the Crown Office.” The modes of prosecution in this state have been of an analogous order. It would mark an innovation in the law to sanction self-accusation as an additional mode of prosecution.
Lacking in the instant case, moreover, is, not only the formal accusation demanded by law, but any accusation whatever sufficient to show that any crime was committed. If the charge on which defendant has been convicted is to be taken to be the oral charge of violating section 43, it is clear that the record fails to show any specification of acts relied upon by the People as showing the commission of that crime. Just as in People v. Zambounis (supra, 251 N. Y. 94, 97), we held that an information in the Court of Special Sessions of the City of New York “ cannot be supplemented or pieced out by the affidavits in the Magistrates’ Court ”, so in the instant case the oral charge of violation of section 43 could not be ‘ ‘ supplemented or pieced out ” by defendant’s statement.
As regards that statement — even if it could be deemed the equivalent of an information — it falls short, and in two distinct respects, of what the law demands. For one thing, it fails to satisfy the basic requisite that an information charge the defendant with “ some designated crime ” (Code Crim. Pro., § 145). While that requirement may not make it necessary to specify by section number the statute on which the prosecution is predicated (see People v. Dioquardo, 303 N. Y. 514), it is essential that there be some definite identification of the particular crime of which the defendant is accused. (See People ex rel. Sampson v. Dunning, 113 App. Div. 35, 40; see, also, People v. Zambounis, supra, 251 N. Y. 94, 96; People v. Grogan, supra, 260 N. Y. 138, 142.) The merest examination of defendant’s statement reveals that it does not charge that defendant is “ ‘ guilty of some designated crime,’ and this is a jurisdictional defect which may not be overlooked.” (People ex rel. Sampson v. Dunning, supra, 113 App. Div. 35, 40; see, also, People v. Grogan, supra, 260 N. Y. 138, 142.) Only by a process of surmise can the statement be read as charging or identifying a particular crime, and it is significant that Judge Coxway, in his opinion, suggests, not one, but several possible criminal charges (supra, p. 37).
*48The statement is inadequate to fulfill the function of an information for the further reason that it fails to show the commission of acts sufficient to spell out any crime at all. That defendant “ let down ” his “ pants ” while in his auto-bile, as recited in the statement, does not establish — without additional facts which do not appear in this record — that he “ wilfully and lewdly ” exposed his person, or that he did so in a public place or in the presence of others, in violation of section 1140 of the Penal Law. Nor is the additional recital in the statement that the defendant approached two girls while in his car, and “ for the purpose of having a little excitement, nothing else ” and “ to scare them ” pretended “ that it was a hold-up ’ sufficient, without more, to establish the crime either of attempted assault (Penal Law, § 242, subd. 5) or of attempted robbery (Penal Law, § 2128), as suggested in Judge Coetway’s opinion {supra, p. 37). The facts stated fall far short of alleging the commission of either crime; apart from other deficiencies, the requisite element of criminal intent is nowhere alleged. (See, e.g., People v. Katz, 290 N. Y. 361.)
Nor does the statement charge a violation of section 43. It asserts no acts which “ seriously ” injured the person or property of another, “ seriously ” disturbed or endangered “ the public peace or health,” or “ openly ” outraged “ public decency,” within the ambit of that provision. (Cf. People v. Bruzzano, 302 N. Y. 605; People v. Corrigan, 253 N. Y. 301; People v. Tylkoff, 212 N. Y. 197; People v. Baylinson, 211 App. Div. 40; People v. McDermott, 111 App. Div. 380.) What is more, by its terms the statute is applicable only where ‘ ‘ no other punishment is expressly prescribed ”, and, if the recitals in the statement could conceivably spell out a criminal offense, it would be one encompassed within some section other than section 43. (See, e.g., People v. Bruzzano, supra, 302 N. Y. 605.)
Clearly, then, the requisite information was lacking, and its absence constitutes a jurisdictional defect which cannot be cured or overcome by waiver or consent or by plea of guilty. As this court has declared, “ waiver is not permitted where a question of jurisdiction or fundamental rights is involved and public injury would result.' A privilege, merely personal, may be waived; a public fundamental right, the exercise of which is requisite to jurisdiction to try, condemn and punish, is binding *49upon the individual and cannot be disregarded by him.” (People ex rel. Battista v. Christian, 249 N. Y. 314, 318.)
In the Battista case (supra, 249 N. Y. 314), it was the constitutional requirement of indictment by a grand jury in felony cases that we held could not be waived by plea of guilty (cf., also, People v. Miles, 289 N. Y. 360, 363), but the underlying principle is not limited to rights guaranteed by the constitution. Accordingly, the doctrine of waiver has not barred us from condemning departures from such fundamental statutory rules of procedure as the failure of the trial judge to charge the jury, even in cases tried in a court of special sessions (see People v. Wallens, 297 N. Y. 57, 62-63), the omission of the prosecuting attorney to make an opening statement to the jury (see People v. Romano, 279 N. Y. 392, 395; People v. Levine, 297 N. Y. 144, 147), or the failure of the court to ask the defendant before imposing sentence whether he has any legal canse to show against pronouncement of sentence. (See People v. Craig, 295 N. Y. 116, 120.)
No less fundamental is the requirement, rooted in tradition and sound public policy, and announced by statute, that prosecution for a crime shall be based on a formal accusation in writing — whether it be indictment or information — designating the crime charged and setting forth the acts alleged to constitute the crime. Compliance with that requirement is essential to the jurisdiction of the court to proceed with the prosecution (see People v. James, 11 App. Div. 609; People ex rel. Sampson v. Dunning, supra, 113 App. Div. 35, 40; Weeks v. United States, supra, 216 F. 292, 293, cert. den. 235 U. S. 697; Albrecht v. United States, supra, 273 U. S. 1, 8), and “ Consent cannot give a court jurisdiction or authorize a substantial change in its fundamental mode of proceeding.” (People ex rel. Battista v. Christian, supra, 249 N. Y. 314, 320.)
Particularly where, as in this ease, the conviction rests on a plea of guilt to a charge which, as noted above, fails to state acts sufficient to constitute any crime, the conviction must be condemned as jurisdictionally defective and a nullity notwithstanding the plea. (See People v. Bell, 31 N. Y. Crim. Rep. 370; People v. Rosenkrantz, 123 Misc. 335; People v. Lindner, 133 Misc. 728; People v. Williams, 135 Misc. 564; People v. Bush, 140 Misc. 59; People v. Huyck, 171 Misc. 467; People v. *50Patrick, 175 Misc. 997; People v. Kugelman, 188 Misc. 135; People ex rel. Prudhomme v. Superintendent of N. Y. State Reformatory for Women, 21 N. Y. S. 2d 563.) The plea constitutes an admission of guilt only of the acts specified in the charge, and since nowhere in the record is there any specification of acts sufficient to constitute a crime, the plea is obviously without meaning or effect. (Cf., e.g., People v. Kugelman, supra, 188 Misc. 135, 137; People ex rel. Prudhomme v. Superintendent of N. Y. State Reformatory for Women, supra, 21 N. Y. S. 2d, 563, 565.)
The mere fact that a plea of guilty has been entered has not barred review in this court of the legal sufficiency of the information, where the information was challenged by motion to dismiss prior to the plea. (See People v. Rudnick, 280 N. Y. 5; People v. Blue, 295 N. Y. 620.) While failure to question the information’s legal adequacy in the trial court may render it immune from challenge on appeal, where the essential elements of the crime charged have been established by evidence adduced at a trial (cf. People v. Wiechers, 179 N. Y. 459; People v. Willett, 213 N. Y. 368, 375), that omission cannot, without doing violence to fundamental principles of justice, be given the effect of validating a conviction which rests solely on a plea of guilt to a nonexistent or insufficient information. (See People v. Bell, supra, 31 N. Y. Crim. Rep. 370, 375.)
Termination of a criminal “ trial ” by a plea of guilty, following quickly upon self-accusation, may save time and may even avoid delaying formalities, but surely those considerations cannot justify the by-passing of essential guarantees and safeguards with which the centuries have silrrounded those accused of crime. Not with mere technicality or form are we here concerned, but rather with a “ fundamental * * * principle of justice and fair dealing ”; as this court wrote in the Zambounis case (supra, 251 N. Y. 94, 97): “Forms and procedure still have their place and purpose in the administration of the law; without them we would have chaos. Much impatience is being shown with the technicalities of the law, and at times it is justified. The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a *51technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law. ’'
The judgment should be reversed and the charge dismissed.
Loughban, Oh. J., and Dye, J., concur with Conway, J.; Desmond, J., concurs with Conway, J., in separate opinion; Ftjld, J., dissents in opinion in which Lewis and Fboessel, JJ., concur.
Judgment affirmed.
. The word “ charge ” is defined in Webster’s New International Dictionary (2d ed., 1948, p. 452), as “an accusation of a wrong or offense; allegation”.