The defendant, Sergio Argueta, submits this omnibus motion to dismiss Count 5 (PL §205.30, Resisting Arrest) and Count 7 (PL §140.05, Trespass)^[FN1]. The defendant moves for the requested relief upon the grounds, inter alia, that: (1) the accusatory information charging the defendant with violating PL §140.05 (Trespass) is insufficient on its face pursuant to CPL §100.40; and (2) that the People have violated CPL §§30.10 and 30.30. The People file opposition and the defendant submits a reply.

The defendant's motion is decided as follows:

The Notice of Motion seeks to dismiss, the third "superceding information", filed on March 30, 2007 charging the defendant with PL §140.05 (Trespass) as facially insufficient and jurisdictionally defective within the meaning of CPL §§100.40, 170.30(1)(a) and 100.15(3). However, the affirmation in support of the motion fails to address this requested relief. Notwithstanding, this Court shall review the information filed on March 30, 2007 for its legal sufficiency.

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL §100.15 and (2) sets forth allegations which "provide reasonable cause to believe that the defendant committed the offense charged" and (3) non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL §100.40[1]; People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 [1987]). As stated by the Court of Appeals in Alejandro, this third requirement is also known as the prima facie case requirement.

PL §140.05 states:

"A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.

The To Wit clause reads in relevant part as follows:

"TO WIT: Upon information and belief, at the aforesaid time, date and place, the manager, Morbin Alvarado, asked the defendant to calm down, he continued to yell, curse and scream whereupon the police were called. Upon our arrival, the manager directed Police Officer Zimmer and myself to certain tables, one of which the defendant was seated at, and requested that we ask the defendant as well as other individuals seated with and around the defendant to leave. At that time, Police Officer Zimmer and myself advised the defendant to leave the premises at the direction of the manager, Morbin Alvarado, or he would be placed under arrest to which he subsequently refused. The defendant remained seated at the table and ignored all requests to leave. After being asked to leave the premises, the defendant had no permission or authority to remain on the premises.

The factual allegations are sufficient pursuant to CPL §§100.15(3) and §100.40.

Accordingly, the motion to dismiss the information, charging the defendant with PL §140.05 (Trespass) is hereby denied.

2. Resisting Arrest [*3]

Although not mentioned in the Notice of Motion, the defense counsel devotes four pages of his affirmation to dismissing the resisting arrest charge (PL §205.30). This Court has already decided that issue. On May 30, 2007, the Honorable Margaret C. Reilly found information charging the defendant with PL §205.30 to be sufficient. The decision by the Hon. Margaret Reilly constitutes law of the case. Accordingly, the portion of the defendant's motion to dismiss the charge of resisting arrest is denied.

Along these lines, the remainder of the defendant's motion as it pertains to (1) dismissing this action in the interest of justice; (2) granting a Wade/Dunaway and Sandoval hearing and (3) for court ordered discovery is denied as the previous decisions of the Court constituted law of the case.

STATUTE OF LIMITATIONS (CPL §30.10)

The defendant claims that the Information, charging the defendant with Count 7 (Trespass), as a violation, should be dismissed pursuant to CPL §30.10 (statute of limitations). The defendant maintains that the action is time barred because over one year has passed from the date of the occurrence (February 18, 2006) to filing the most recent Information (March 30, 2007). The People, in their opposition papers, claim that a portion of the statute of limitation was tolled, pursuant to CPL §30.10(4)(b) and thus the People are well within the proscribed period of limitation to bring the present Trespass charge. The People submit that the current criminal prosecution is based upon the same conduct as the charges in the previously dismissed action. The People further assert that pursuant to CPL §30.10(4)(b), the period from commencement of the "defeated prosecution" until the dismissal of that instrument should not constitute part of the period calculated for statute of limitations purposes for the current Trespass charge.

The procedural history in this case is not typical. In order to properly analyze this issue, this Court must set forth the pertinent procedural history.

A Procedural History:

1.On February 18, 2006, the defendant was arrested and arraigned for violating PL §140.10 (Criminal Trespass in the Third Degree) Count 1, a class "B" misdemeanor and PL §205.30 (Resisting Arrest) Count 2 , a class "A" misdemeanor.

2.In June of 2006, the defendant filed an omnibus motion seeking to dismiss Count 1 and Count 2.

3.On July 14, 2006, the People filed two (2) District Court Informations charging the defendant with the same exact charges in an attempt to supercede Count 1 and Count 2.

4.On July 21, 2006, the Court arraigned the defendant on the Informations (hereinafter Count 3, Resisting Arrest [PL §205.30] and Count 4, Criminal Trespass [PL §140.10]). Count 1 and Count 2 were deemed dismissed pursuant to CPL §100.50. [*4](The defendant's motion to dismiss Count 1 and Count 2 was withdrawn by the defendant without the Court ruling on the sufficiency of the accusatory instruments pertaining to Count 1 and Count 2.)

5.On September 11, 2006, the defendant filed a second omnibus motion seeking to dismiss Count 3 and Count 4.

6.On December 14, 2006, the Court granted the defendant's motion to the extent that Count 4, charging the defendant with PL §140.10 (Criminal Trespass) was dismissed as facially insufficient pursuant to CPL §100.15 and CPL §100.40. However, the defendant's motion to dismiss the Resisting Arrest charge was denied.

7.On January 22, 2007, the People filed two (2) more Informations charging another Resisting Arrest charge [PL §205.30] in Count 5 and Count 6, a trespass charge [PL §140.05], this time as a violation.

8.On January 31, 2007, the defendant was arraigned on Count 5 and Count 6. Count 3 (a Resisting charge) was dismissed, pursuant to CPL §100.50.

9.In response, on March 4, 2007, the defendant filed a third omnibus motion.

10.On March 30, 2007, the People filed Count 7, the instant Trespass violation [PL §140.05].

11.On May 30, 2007, the Court dismissed Count 6, Trespass [PL §140.05] holding that the Information was facially insufficient, pursuant to CPL §§100.40 and 100.15. The Court, once again, ruled that Count 5 was facially sufficient and denied the defendant's motion to dismiss as it related to Count 5. (Because the defendant had not yet been arraigned on Count 7, the Court ruled on the sufficiency of Count 6 [see, CPL §100.50]). The defendant was eventually arraigned on Count 7 on April 11, 2007.

Legal Analysis:

CPL §30.10 sets forth the statute of limitations for criminal actions. "It deals with the time elapsed between the commission of the offense and commencement of the action, and it bars prosecution of actions not commenced within the statutorily prescribed period" (Practice Commentaries by Peter Preiser, McKinney's Consolidated Laws of New York, §30.10, p. 168). "The statute of limitations reflects legislative judgment as to when a charge should be considered too stale to prosecute, based largely upon three policy considerations: (I) the difficulty in having to defend against a charge when "basic facts may have become obscured by the passage of time"; (ii) amelioration of the fear of punishment for acts in the far-distant past; and (iii) encouragement of prompt investigation of suspected criminal activity (Practice Commentaries by Peter Preiser, McKinney's Consolidated Laws of New York, §30.10, p. 168, citing People v. Seda, 93 NY2d 307, [*5]311, 690 NYS2d 517 [1999], quoting Toussie v. United States, 397 US 112, 114-115; 90 SCt 858 [1970]). Thus, pre-commencement delays ("statute of limitations") are governed by CPL §30.10, while post-commencement delays are governed by CPL §§30.20 and 30.30 ("speedy trial").

CPL §30.10(2)(d) requires a "prosecution for a petty offense be commenced within one year after the commission thereof". A petty offense is defined by CPL §1.20(39) as a "violation or a traffic infraction".

The "commission of the offense" is committed on the day of the occurrence of the crime (see, People v. Fletcher Gravel Co., Inc., 82 Misc 2d 22, 368 NYS2d 392 [1975]; People v. McAllister, 77 Misc 2d 142, 352 NYS2d 360 [NY City Crim Court, Kings County 1974]). The date of the offense, although not always required, will usually be plead in the accusatory instrument (see, CPL §§100.15 and 100.40). In the instant case, the information, charging the defendant with Trespass, filed on March 30, 2007, alleges the date of the incident to be February 18, 2006. This date is not challenged by the People or the defendant. In fact, the defense counsel's reply affirmation states that "[t]he facts are crystal clear that the incident at issue herein allegedly occurred on February 18, 2006." Accordingly, the commission of the offense for statute of limitation purposes is February 18, 2006.

The second time period for statute of limitation purposes is the "commencement of the action". In the instant case, the date upon which this action was commenced was difficult to determine in light of the procedural history.

CPL §1.20(17) entitled "Commencement of a criminal action" reads, in relevant part, as follows:

"A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed." [emphasis added]

CPL §1.20(16) entitled "Criminal action" reads, in pertinent part, as follows:

"...." A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one; and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case."

In People v. Lomax, 50 NY2d 351, 428 NYS2d 937 (1980), the Court of Appeals held that "there can only be one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding the fact, the original accusatory instrument may be replaced or [*6]superceded during the course of the action. This is so even in cases such as this, where the original accusatory instrument was dismissed outright and the defendant was subsequently hauled into court under an entirely new [instrument]" (People v. Lomax, 50 NY2d at 356). The Court of Appeals in Lomax noted that a criminal action is to have "continuity" even though the issuance of successive accusatory instruments, and that, if there can be only one criminal action for any given set of criminal charges, there can also be only one commencement date, "on which the first accusatory paper is filed" (see, People v. Lomax, 50 NY2d at 351). In People v. Osgood, 52 NY2d 37, 436 NYS2d 213 [1980], the Court of Appeals held that a criminal action terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case (emphasis added). The Court of Appeals' cases, cited herein, analyzed the commencement of a criminal action for CPL §30.30 purposes. However, the Court's reasoning is applicable for the determination of the commencement of a criminal action, for CPL §30.10 purposes.

The statutory provision that there can be only one criminal action against the defendant arising out of a particular incident has the effect of protecting an accused against the dangers and unfairness of an indefinite, continuous and uncertain prosecution, and such provisions cause the time for trial to commence when the first accusatory instrument is filed (see, People v. McBride, 126 Misc 2d 272, 482 NYS2d 203 [1984]).

Thus, a literal reading of CPL §30.10(2)(b) requires the Court to determine that only one criminal action has been commenced, and said action was commenced on February 18, 2006 (the date the first accusatory instrument was filed). Accordingly, the criminal action was timely, pursuant to CPL §30.10, as the criminal action was commenced on the same date of the occurrence.

If this Court was not denying this portion of the defendant's motion upon the grounds that the criminal action commenced upon the filing of the first accusatory instrument, the defendant's motion would be denied because the statute of limitations period was tolled pursuant to CPL §30.10(4)(b)^[FN2].

Over one (1) year has elapsed from the date of the occurrence (February 18, 2006) to the last accusatory instrument filed in the criminal action (March 30, 2007). As set forth previously herein, however, the People claim the criminal action for trespass is not barred because the following time periods are tolled pursuant to CPL §30.10(4)(b).

CPL §30.10(4)(b) reads, in relevant part, that:

"When a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefor, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge." [emphasis added]

The first time period claimed by the People to be tolled is from February 18, 2006 (the date the People filed the first Information for Criminal Trespass [PL §140.10], a misdemeanor) to July 21, 2006 (the date the People superceded the original Information charging the defendant with PL §140.10 with an Information charging the defendant with the same offense PL §140.10 [Criminal Trespass]).

The second time period claimed by the People to be tolled is from July 21, 2006 (the arraignment on the superceding information) to December 14, 2006 (the date the superceding Information was dismissed by the Court, as facially insufficient).

The third time period claimed to be tolled, by the People was from January 22, 2007 (the date the People filed another Information charging the defendant with Trespass [PL §140.05], as a violation) to May 30, 2007 (the date the Information charging the defendant with Trespass [PL §140.05], as a violation was dismissed by this Court, as insufficient).

In order for the tolling provision of CPL §30.10(4)(b) to be applicable, the criminal action must have been "lawfully commenced". The Appellate Division in People v. Kase, 76 AD2d 532, 431 NYS2d 531 [1st Dept 1980], held that a criminal action was not lawfully commenced because the Court did not have geographical jurisdiction over the subject matter of the crime. The Court [*7]went on to hold that because the criminal action was not lawfully commenced, CPL §30.10(4)(b) does not toll the statute of limitations. Similarly, the Appellate Term in People v. Hausch, 3 Misc 3d 20, 77 NYS2d 829 (Appellate Term, 2d Dept [2004]) reversed a judgment of conviction upon the grounds that the offense was time barred pursuant to CPL §30.10. In this case, the People claimed that the statute of limitations was tolled pursuant to CPL §30.10(4)(b). The Appellate Term disagreed with the prosecution. The Court reasoned that the statute of limitations was not tolled because the earlier prosecution was dismissed because the information filed on that case was held to be jurisdictionally defective, pursuant to CPL §§100.15 and 100.40 (see, People v. Hausch, 3 Misc 3d 20, 777 NYS2d 829 [App Term 2004], 2002 WL 1967944 [NY Sup App Term] 2002 NY Slip Op 40360[U], 187 Misc 2d 202, 721 NYS2d 745, 2001 WL 242571 [Justice Court Village of Tuckahoe]).

In the instant case, this Court held that the Information filed on July 14, 2006 and the Information filed on January 22, 2006 were facially insufficient, pursuant to CPL §§100.15 and 100.40. A defective accusatory instrument, pursuant to CPL §§100.15 and 100.40 will not toll the running of the statute (see, New York Practice Series - New York Pretrial Criminal Procedure - §9.3 [Statute of Limitations - Relevant Time Periods, citing People v. Kase, 76 AD2d 532, 431 NYS2d 531 [1st Dept 1980]). Accordingly, the Court finds that the period from July 21, 2006 to December 14, 2006 and the period from January 22, 2007 to May 30, 2007 are not tolled, pursuant to CPL §30.10(4)(b).

However, the period from February 18, 2006 to July 21, 2006 is tolled. There was no judicial determination that said instrument was defective. The action was dismissed when the People superceded the Information (see, CPL §100.50). Accordingly, this Court finds the criminal action commenced on February 18, 2006 to be lawfully commenced and dismissed by an authorized Court under circumstances permitting the lodging of another charge for the same offense (see, CPL 30.10[4][b]). The tolling provision of CPL §30.10(4)(b) is applicable for the period between February 18, 2006 and July 21, 2006.

Thus, the five (5) month tolling of the statute of limitations (February 18, 2006 to July 21, 2006) makes this criminal action timely.

The defendant moves for an order dismissing Count 5, Resisting Arrest and Count 7, Trespass as a violation, upon the ground that he has been denied his statutory right to a speedy trial as set forth under CPL §30.30(1)(b).

The defendant's motion is granted to the extent that it shall be set down for a hearing to make findings of fact essential to the determination thereof. All parties are directed to appear for a speedy trial hearing at the First District Court, 99 Main Street, Criminal Part 1, Hempstead, New York on the 1st day of November, 2007 at 9:30 a.m.

So Ordered: [*8]

_____________/S/____________________

Dana Mitchell Jaffe,D.C.J.

Dated: October 4, 2007

cc:Kathleen M. Rice, District Attorney

Frederick K. Brewington, Esq.