Facts of the Case.

Thomas J. DiSalvo, J. People v. Scott Ross: The defendant was charged on June 26,

1999 with issuing a bad check in the amount of $521.14 in violation of P.L. 190.05(1). An arrest

warrant was issued by Hon. John M. Barrett, Webster Town Justice on July 22, 1999. The

defendant was arrested on that warrant by the Webster Police on November 13, 2010. Bail was

set in the amount of $500.00 cash or bond. The defense counsel submitted omnibus motions in

this matter.

People v. Anne S. Ross: The defendant was charged on June 29, 1999 and July 13, 1999

with issuing bad checks in the amount of $331.57 and $594.80, respectively, in violation of P.L. [*2]

190.05(1). An arrest warrant was issued by Hon. John M. Barrett, Webster Town Justice on July 22, 1999. The defendant was arrested on that warrant by the Webster Police on November 13,

2010. Bail was set in the amount of $500.00 cash or bond. The defense counsel submitted

omnibus motions in this matter.

Issues Presented.

Is the information filed with the court sufficient pursuant to C.P.L 100.40(1)?

Should the charge of issuing a bad check be dismissed on speedy trial grounds?

Legal Analysis.

As to Scott Ross:

(i) Sufficiency: Non-Hearsay allegations. The defendant was charged via a complaint

signed by a Marilyn Johnson, an employee of the payee, B.J. Wholesale Club, who made the

allegations therein upon information and belief. Attached thereto is a supporting deposition

attested to by another employee of the payee, to wit: Carmen Negron, who alleges to have taken

the check in question directly from the defendant. The two accusatory instruments form an

information as defined by C.P.L. 1.20 (4). See also C.P.L. 170.65(1). Reference should also be

made to C.P.L 100.15(3) which deals with an information and states "The factual part of such

instrument must contain a statement of the complainant alleging facts of an evidentiary character

supporting or tending to support the charges."

The motions allege that the information fails to allege non-hearsay allegations in the

factual part of the complaint as required by C.P.L. 100.40(1)( c) since the defendant is not

referred by name but is instead referred to as "said defendant". The caption in said complaint

sets out in full the name of the defendant, "Scott Ross". This is an argument for form over [*3]

substance. The reference to said defendant is clear enough to identify the defendant herein. In

addition, the supporting deposition also refers to "the above named defendant" as set out in the caption of the said deposition, which lists the defendant as "Scott Ross". The combination of

both the complaint and supporting deposition, which forms the accusatory information, satisfies

the non-hearsay allegation requirement relative to the factual part of an information as set out in

C.P.L. 100.40(1)( c).

As to Scott Ross:

(ii) Sufficiency: Written Notice of Protest and/or Check. Defendant argues that the

failure of the prosecution to file a "deposition of protest" and the original check with the court

rendered the factual portion of the information insufficient on its face as defined by C.P.L.

100.40.The New York State Court of Appeals in People v. Miles, 64 NY2d 731, 485

N.Y.S.2d 747, 748 (1984) did not require that either a notice of protest or the original check be

made a part of the accusatory instrument for it to be sufficient on its face. The court stated that

the accusatory instrument in that case

"... sets forth sufficient evidentiary facts by alleging that defendant knew of his insufficient funds and intended or believed payment would be refused. This fulfilled the twofold purpose of an information, which is to inform defendant of the nature of the charge and the acts constituting it so that he may prepare for trial and protect himself from being tried again for the same offense (see CPL 100.15, subd 3; People v McGuire, 5 NY2d 523, 526). The People's proof on these issues was properly left for trial."^[FN1]

In the instant case, the information alleges the four elements of the charge of issuing a

bad check and includes the non-hearsay allegation of the deponent of the supporting deposition,

who stated that she received the check in question directly from the defendant.^[FN2] The remaining [*4]evidentiary issues related to the actual check and the notice of protest should be left for trial.

(iii) Speedy Trial.

As to Scott Ross and Anne S. Ross:

The defendants raise both constitutional and statutory grounds speedy trial grounds for

dismissal of the charges. The defendants are charged with issuing bad checks, in violation of

violation of P.L. 190.05(1). Said offense is a class B misdemeanor. Criminal Procedure Law

30.30(1)( c) requires that a motion to dismiss must be granted if the people are not ready for trial

within sixty days. The instant cases involve charges that were filed with the court in June and

July of 1999, with warrants of arrest issued in July of 1999. The defendants were arrested and

arraigned on the charge in November of 2010, some eleven years later. The court's files provide

no information as why the defendants were not arrested during the interim. Nor do the People in

their cross motions set out an explanation for the delay in prosecution.

The defendants bear the burden of alleging that their speedy trial rights were violated by

stating that the People did not declare their readiness for trial within the statutory time period.

People v. Brossoit, 256 AD2d 919, 682 N.Y.S.2d 273 [1998]. "Once this showing is made, the

burden shifts to the prosecution to identify the exclusion upon which it relies ...."^[FN3] Criminal

Procedure Law Section 30.30[4][c]( i ) states that "A defendant must be considered absent

whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or

his location cannot be determined by due diligence.[emphasis added]"In People v. Brossoit the

defendant argued that his speedy trial rights under C.P.L. 30.30 were violated because he was not [*5]

brought to trial on the charge of grand larceny, fourth degree within six months of the issuance of

the arrest warrant.^[FN4] However, the people put forth evidence of the unsuccessful efforts of the

police to locate and apprehend the defendant. The prosecution also presented evidence of the

defendant's efforts to hide from the police and the actions of a third party who aided the

defendant in his efforts.^[FN5] Upon receiving a crime stopper's tip, a new arrest warrant was issued

and the defendant was taken into custody.^[FN6] However based on a showing of the efforts of the People, i.e. the due diligence put forward by the people through the police, the court excluded a

period of approximately fourteen months that would have been chargeable to the People.^[FN7]

This case, wherein an arrest warrant [C.P.L. 1.20(28)] was issued, must be distinguished

from a case involving a bench warrant [C.P.L.1.20(30)] issued after an initial appearance in court

by the defendant. "Thus, in a case in which a defendant who is at liberty on bail or recognizance

fails to appear in court, and is not otherwise incarcerated, the People are no longer required to

exercise due diligence in attempting to locate the defendant. CPL 30.30(4)(c)(ii)." People v.

Howard 182 Misc 2d 549,553, 699 N.Y.S.2d 650, 653-654 [1999]. Again, the case at bar is one

in which prior to being picked up on the arrest warrant, the defendant had never been before the

court. The case of People v. Smith, 188 Misc 2d.356, 727 N.Y.S.2d 602 [2001] is most instructive

despite the fact that an arrest warrant was issued pursuant to a felony complaint rather that [*6]

misdemeanor complaint. In that case the court held that

"CPL 30.30(4)(c)(ii) is not applicable because defendant did not escape from custody or fail to appear after being released on bail or recognizance and a bench warrant was not issued. Thus, the provisions of CPL 30.30(4)(c)(i) control and they require that the delay result from' defendant's absence or unavailability. While the court believes that the hearing testimony established that defendant was unavailable', that unavailability did not prevent the prosecution from indicting defendant, announcing their readiness and obtaining a bench warrant, therebytolling the clock." Id. 360, 606.

Since C. P.L. 30.30(4)( c)(i) applies, the People must show due diligence in attempting to

locate the defendants and bring them before the court for arraignment before the statutory time

expired. In a misdemeanor case such as this, wherein an arrest warrant was issued, but the defendant was not brought before the court until after the statutory time for speedy trial has

expired, the mere fact of the defendants' unavailability is not sufficient to exclude the time

in question from the time required to bring the defendants to trial. Thus, the People would be

granted a due diligence hearing to show that the statutory time for trial should be tolled, upon a

proffer of evidence that due diligence was exercised by the People in finding the defendant

subsequent to the filing of the information herein. Absent said proffer of evidence, the charge of

Issuing a Bad Check in violation of 190.05(1) would be dismissed pursuant to C.P.L. 30.30(1)

( c). The People have thirty days from the date of this decision and order to file affidavits

regarding the issue of due diligence. This constitutes the decision and order of the court.^[FN8]

Dated: Webster, New York

May 18, 2011

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice