[*1]
People v Walker
2005 NY Slip Op 50407(U)
Decided on March 11, 2005
Poughkeepsie City Court
McGaw, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 11, 2005
Poughkeepsie City Court


The People of the State of New York, Plaintiff,

against

John P. Walker, Defendant




04-33647



Michael W. Brady, Esq.

Dutchess County Public Defender's Office

22 Market Street

Poughkeepsie, New York 12601, for defendant.

Richard W. Fiorile, Esq.

Dutchess County District Attorney's Office

236 Main Street

Poughkeepsie, New York 12601, for plaintiff.

Ronald J. McGaw, J.

Procedural History

An application for an arrest warrant for the defendant was filed with the Court on May 25, 2004 alleging the charge of Burglary in the Second Degree in violation of Penal Law Section 140.25(2). The accusatory instrument alleged in pertinent part as follows:

On the above dated and time . . . the defendant John P. Walker did knowingly enter and remained unlawfully in the above named apartment . . ."

The accusatory instrument further alleges as follows:

The above allegations of fact are made by the complainant herein on direct knowledge and/or upon information and belief, with the source of the complainant's information and the grounds for his belief being: an investigation performed by members of the City of Poughkeepsie Police Department and your deponent who is a detective, a deposition by one of the owners of the property Joseph Waldron, and a conclusive latent finger print comparison match to the suspect John P. Walker.

Filed along with the accusatory instrument was an affidavit of Joseph Waldron which states in pertinent part that the defendant was "never given permission to enter" the apartment. No latent fingerprint report, however, nor any affidavit from the author of such a report, was filed with the accusatory instrument. An arrest warrant was issued on May 27, 2004.

On July 12, 2004, the defendant was arrested on the Burglary charge and [*2]arraigned the following day, July 13, 2004. On July 16, 2004, the charge was reduced to a Class "A" Misdemeanor, Criminal Trespass in the 2nd Degree in violation of Penal Law Section 140.15 of the Penal Law.

On July 19, 2005, the People prepared a written Statement of Readiness, and on July 23, 2004 the People's Statement of Readiness was filed with the Court. The case was thereafter adjourned on consent until August 13, 2004. The defendant does not dispute this consent adjournment. According to the docket card record of the Court, the case was then adjourned again on consent until September 17, 2004. The defendant asserts that this latter adjournment was not on consent. The transcript of that adjournment has not, to the Court's knowledge, yet been examined. No further adjournments were made on consent prior to the filing of this motion.

On September 17, 2004, the People supplemented the accusatory Instrument with two supporting depositions from Steven Foran and Brad Staudle both of which affirm that the defendant had never been granted permission to enter the apartment. No supplemental supporting depositions regarding the issue of identification, however, were filed with the Court prior to the filing of defendant's motion.

Legal Principles


The speedy trial statute, CPL §30.30, requires that the People announce their readiness for trial of a misdemeanor case within 90 days of the commencement of the criminal action. A statement of readiness consists of two elements: (1) a communication of readiness by the People which appears on the record, and (2) an indication of present readiness as opposed to a prediction or expectation of future readiness. People v. Caussade, 162 AD2d 4, 7 (2nd Dept. 1990). As to this second element, present readiness for trial is established when the People have a valid accusatory instrument upon which a defendant may be brought to trial. Id at 8. That is to say, an accusatory instrument, together with any supporting depositions, may be deemed an "information" only when it is capable of serving as the basis for prosecution. CPL §100.10(1). Furthermore, an information may be deemed sufficient only when it contains "non-hearsay allegations (that) establish, if true, every element of the offense charged and the defendant's commission thereof." CPL § 100.40(1)(c).

Analysis


In the instant case, the statement of readiness made by the People, to be valid, should have been made at a time when the People were presently ready for trial as opposed to nearly ready or as a precursor for future readiness. Thus, an information was required to have existed at the point of the People's Statement of Readiness such that every element of the offense charged were alleged by non-hearsay allegations. The pending charge, Criminal Trespass in the 2nd Degree, requires two elements: (1) that some person knowingly entered or remained unlawfully in a dwelling, and (2) that the person in question was the defendant.

1.Element 1: Unlawful Entry of Dwelling

Here, the People assert that they have properly set forth the first of those elements by inclusion of the affidavit of Joseph Waldron which clearly states that the named defendant had [*3]not been given permission to enter the apartment. Whether the law requires that the People also include similar affidavits of all other owners or persons with a right of occupancy in the apartment is a point of reasonable dispute. Could it not be that one of three legal renters of an apartment granted permission without the knowledge of the other two? And if all tenants in residence must be brought into the case, cannot the same also be said of an absentee landlord who has retained a contractual right of occupancy? Are the People thus compelled by the law to review the contractual provisions of all owners and occupiers of the premises, and to determine the residency rights of each, before a valid information may be prepared? Or should the unbeknownst permission of a fellow tenant or landlord be properly viewed as an affirmative defense to an otherwise valid information? Due to additional deficiencies in the People's case, the Court need not reach this issue and makes no determination as to the sufficiency of this element of the pending charge.

2.Element 2: Identity

At the point of the People's Statement of Readiness, the only allegation of identification included in the accusatory instrument was the assertion by the detective/deponent regarding a "conclusive latent finger print comparison match to the suspect John P. Walker." There is no allegation that the detective/deponent was the person who collected the fingerprints, or performed the comparison, or determined that the fingerprints matched those of the defendant, or prepared any report regarding this procedure. Indeed, subsequent submissions of the People suggest that the detective/deponent was not directly involved in the collection of the fingerprints or the preparation of a comparison report. As such, the assertion of the detective/deponent regarding identity must be viewed as hearsay.

In a recent similar case wherein a defendant was charged with a burglary based upon fingerprint evidence, the Supreme Court of New York County stated as follows:

The only evidence linking the defendant to the crime is the discovery of three latent fingerprints on a television screen in the apartment. The prints were discovered . . . by (the officer) who used white powder and a feather duster to locate the prints, "lifted" them from the screen by using tape and then transferred the prints to a fingerprint card. He forwarded the evidence to the NYPD Latent Print Section for comparison testing. *** (The officer) has now retired and is living in Ireland. The People have moved to introduce his Latent Print Report into evidence at trial under the business records exception to the hearsay rule. The defendant has objected, (contending) that under Crawford v. Washington, 541 U.S. 36 (2004) the Latent Print Report would not be admissible under the business records exception because information contained in the report is "testimonial" in nature. *** The defendant contends that admitting the Latent Print Report into evidence without the ability to cross examine the report's preparer concerning, for example, his methods and care with which he uncovered and lifted the prints, would be a violation of his rights under the Sixth Amendment's Confrontation Clause.


People v. Rafael Hernandez, 2005 Slip Op. 25007; 2005 NY Misc. LEXIS 33 (Supreme Ct. NY Co. January 6, 2005). [*4]

The court in Hernandez held that the latent print report could not be admitted into evidence at trial in the absence of the officer. The case is particularly instructive, however, in that the Hernandez court also clearly viewed the fingerprint comparison report as hearsay. Similarly, the "conclusive latent finger print comparison match" alleged in the instant case must be viewed as hearsay, and thus not supportive of the People's purported Statement of Readiness.

In that the accusatory instrument, prior to the defendant's motion, was not supported by "non-hearsay allegations (that) establish, if true, every element of the offense charged and the defendant's commission thereof," the People's purported Statement of Readiness must be viewed as having been invalid. Consequently, the charge must now be dismissed on speedy trial grounds.

THEREFORE, for the reasons set forth above, the charge is dismissed.

SO ORDERED.

Dated:Poughkeepsie, New York

March 11, 2005

__________________________

RONALD J. MCGAW

CITY COURT JUDGE

TO: