Motion to Release Pursuant to CPL 30.30(2)(b)

This decision expands the oral decision rendered on the record in open court with respect to the following issue:

Whether a criminal defendant who is being held on bail must be released on his own recognizance pursuant to CPL 30.30(2)(b) where the misdemeanor information is only partially converted after 30 days have elapsed since his arraignment?

Defendant in the instant matter was charged with the following seven counts:

1. PL 120.00(1), Assault in the Third Degree

2. PL 110/120.00(1), Attempted Assault in the Third Degree

3. PL 120.25, Menacing in the Third Degree

4. PL 205.30, Resisting Arrest

5. PL 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree

6. PL 240.26(1), Harassment in the Second Degree

7. PL 265.01(2), Criminal Possession of a Weapon in the Fourth Degree

All of the charges in the complaint were converted to an information except for the charge of Criminal Possession of a Controlled Substance in the Seventh Degree, and the People announced ready for trial on all of the converted counts within 30 days after Defendant's arraignment. Defendant was being held on $750 bail, and defense counsel orally moved to have Defendant released on his own recognizance pursuant to CPL 30.30(2)(b).

CPL 30.30(2) states:

...where a defendant has been committed to the custody of the sheriff in a

criminal action he must be released on bail or on his own recognizance, upon [*2]

such conditions as may be just and reasonable, if the people are not ready

for trial in that criminal action within: ...

(b) thirty days from the commencement of his commitment to the custody of the

sheriff in a criminal action wherein the defendant is accused of one or more

offenses, at least one of which is a misdemeanor punishable by a sentence of

imprisonment of more than three months and none of which is a felony;

The thrust of Defendant's argument is that the People cannot be "ready for trial" on a partially converted information; Defendant asserts that if the entire complaint is not fully converted a defendant must be released from custody. We disagree.

Pursuant to the CPL, a criminal defendant charged with one or more misdemeanors must be released on his or her own recognizance or on bail under two circumstances: a defendant's incarceration pending conversion of a complaint to an information, governed by CPL 170.70 and, where the accusatory instrument is an information pending trial, governed by CPL 30.30(2)(b). CPL 30.30(2)(b) requires that a defendant must be released from custody if the People are not ready for trial within 30 days after arraignment on a class A misdemeanor People v. Rodriguez, 152 Misc 2d 501, 577 NYS2d 760 (New York County 1991). The court notes that most of the charges in this case are class A misdemeanors.

People v. Chakwin, 63 NY2d 120, 480 NYS2d 719 (1984), is a case concerning the availability of a writ of habeas corpus as a means of having a criminal defendant released pursuant to CPL 30.30(2)(b). The Chakwin court held that "the plain meaning of CPL 30.30(2)(b) is that a defendant's showing of a violation of that section will result in the defendant's release, either by a fixing of bail at an amount which the defendant can post or by a release of the defendant on his own recognizance." Therefore, even if the court were to agree with Defendant's assertion that the People cannot be deemed ready for trial on a partially converted information, it does not automatically follow that Defendant would be released on his own recognizance; the court could decide to reduce the amount of Defendant's bail to a sum that would be considered just and reasonable.

In People v, Ortiz, 253 AD2d 688, 678 NYS2d 91 (1st Dept. 1998), a case involving the incarceration of a defendant pending conversion, the Appellate Division held that:

Each count of an accusatory instrument is deemed as a matter of law to be a

separate and distinct accusatory instrument .... Accordingly, we conclude that

the nonhearsay corroboration of one count in a multicount misdemeanor

complaint is sufficient to warrant retention.

Similarly, in People v. Castro, 2001 WL 1691976 (NY Sup. App. Term 2001), the Appellate Term determined that, for purposes of the speedy trial provisions of CPL 30.30, each count of a partially converted accusatory instrument is to be individually determined. In this instance the court held that the People may be ready for trial on the converted counts of an [*3]accusatory instrument, even if not all of the counts have been converted.

Most recently, this court held in People v. Ishmell, 2006 WL 3298291 (NY City Crim. Ct. 2006), that the People were deemed ready for trial on the converted count of a partially converted complaint within the time limits of CPL 30.30. The court concluded that the People may be considered ready for trial on the converted counts of a complaint, even if they would not be able to proceed on the counts that are unconverted within the time limitations imposed under CPL 30.30.

Consequently, based on the foregoing, this court denied Defendant's instant oral motion to be released pursuant to CPL 30.30(2)(b) because the People were ready for trial within the CPL 30.30 time restraints on all but one of the seven counts appearing in the complaint.

Dated: February 15, 2007

__________________________

EILEEN N. NADELSON, J.C.C.