[*1]
People v Gregg
2011 NY Slip Op 52084(U) [33 Misc 3d 1223(A)]
Decided on November 17, 2011
Criminal Court Of The City Of New York, Kings County
Wilson, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2011
Criminal Court of the City of New York, Kings County


The People of the State of New York,

against

Maurice Gregg, Defendant.




2011KN040483



For the People, Charles J. Hynes, District Attorney, Kings County, by Janesse Dawson, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Legal Aid Society by Elisabeth Calcaterra, Esq.

John H. Wilson, J.



Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor.

By motion dated August 31, 2011, Defendant moves to dismiss the Criminal Court complainant pursuant to CPL Sec. 30.30.

The Court has reviewed the Court file, Defendant's motion, and the People's response dated November 10, 2011.

For the reasons stated below, pursuant to CPL Sec. 170.30(3), Defendant's motion is deemed to be a motion to dismiss for facial insufficiency under CPL Sec. 170.30(1)(a), and as such, is granted.

STATEMENT OF THE FACTS

On May 21, 2011, Defendant was arrested at the corner of Blake Avenue and Powell [*2]Street, Brooklyn, New York, while allegedly in possession of "a plastic bottle containing methadone." The Criminal Court complaint, signed by Detective Virgil Cumberbatch indicates that he was informed of these facts "by the supporting deposition of Detective Peter J. Hoeflinger Shield No. 3870."

At the Defendant's arraignment on May 23, 2011, The People filed and served the supporting deposition of Detective Hoeflinger. The supporting deposition of the detective indicated that his shield number was 3872, and not 3870. Defendant was released, and the matter was adjourned to July 7, 2011 for the People to provide the Court with a superceding information.

On July 7, 2011, and again on August 24, 2011, the People failed to provide the Court with a superceding complaint, or any explanation for their failure to follow the Court's instructions.



DEFENDANT'S MOTION TO DISMISS PURSUANT TO CPL SEC. 30.30 IS MORE PROPERLY CONSIDERED AS A MOTION TO DISMISS FOR FACIAL INSUFFICIENCY, AND AS SUCH, IS GRANTED

Defendant asserts that "the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness by the People." See, Defendant's motion dated August 31, 2011, p 2 para 6. However, this is not correct. A review of the Court's notes on the back of the Court file indicate that on the first call of this matter, at Defendant's arraignment, the People did state ready for trial.

Thus, at Defendant's arraignment, the People stated ready for the record, in open court pursuant to People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888 (1985) ("there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court...or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record..." (emphasis added). See, also People v. Perre , 172 Misc 2d 976, 979, 660 NYS2d 632 (S Ct., NY Cty, 1997) ("Statements (of readiness) were effective when made and filed with the court").

Under these circumstances, CPL Sec. 30.30 is not implicated. However, a separate issue arose during Defendant's arraignment regarding the sufficiency of the Criminal Court complaint. In order that it may consider this issue, the Court will use its discretion under CPL Sec. 170.30(3), and deem Defendant's motion as one brought to dismiss for facially insufficiency [*3]under CPL Sec. 170.30(1)(a).[FN1]

At Defendant's arraignment, it was brought to the Court's attention that there was a discrepancy regarding the shield number of the informant. A review of the complaint indicates that Detective Hoeflinger's shield number is reported to be 3870. Yet, the supporting deposition states the Detective's shield number is 3872. The People's discovery package dated August 24, 2011, includes a "Misdemeanor Narcotics Possession Fact Sheet," which lists Detective Hoeflinger's shield number as 3872.

On the first adjourn date after arraignment, July 7, 2011, the People did not provide a superceding complaint. The Court's notes in the Court file indicate that the People were reminded that a superceding complaint was necessary for "shield No. of Det." At that time, the People were again instructed to supercede the complaint.

On the next court date, August 24, 2011, more than 3 months after Defendant's arraignment, the People again failed to supercede the complaint, without reason or explanation.

There is no dispute that the discrepancy in the Detective's shield number renders the Criminal Court complaint facially insufficient.[FN2] Under CPL Sec. 100.40(1)(c), a misdemeanor information is facially sufficient if the "non-hearsay allegations of the factual part of the information and/or supporting deposition establish, if true, every element of the offense charged, and the defendant's commission thereof." If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). It is not unreasonable for the People to be expected to prove, as one of the essential elements of their case, the correct identity of the detective making the allegation against the Defendant.

However, this finding does not require dismissal of the charge. Upon being made aware of the discrepancy at arraignments, the Court instructed the People to supercede the complaint. [*4]See, CPL Sec. 170.35(1)(a); People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986) ("the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible.")

In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because...the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).

Here, the People had the ability to correct the defect, and at Defendant's arraignment, the Court instructed the People to cure this error by "filing a superceding information." See, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003). Thus, the Court's instruction is the appropriate remedy here.

In their response, the People assert that it is the supporting deposition which is in error.They state that this is a "typographical error...(which) can easily be cured with an superceding information." See, People's response dated November 10, 2011 p 4-5.

Since the People concede the necessity of correcting the error, it is incomprehensible that the People should continue to ignore the Court's instructions. Even if the shield number is incorrectly stated in the supporting deposition, and not the complaint, the People have made no effort to rectify this mistake since they were instructed to do so at Defendant's arraignment on May 23, 2011.

To date, the People have not given any reasonable explanation for their failure to supercede their complaint, despite being given numerous opportunities to follow the Court's instructions. Therefore, given the People's unexplained and unreasonable failure to correct the defects in the current complaint, the complaint is dismissed as facially insufficient. Sealing is stayed for 30 days.

All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkNovember 17, 2011

_______________________________Hon. John H. Wilson, JCC

Footnotes


Footnote 1: Under CPL Sec. 170.30(3), "(a) subsequent motion based upon such a ground not so raised may be summarily denied, although the court, in the interest of justice and for good cause shown, may in its discretion entertain and dispose of such a motion on the merits notwithstanding." Rather than await a motion from the Defendant on the issue of facial sufficiency, in the interests of justice and judicial economy, the Court will adjudicate this issue on the motion, response and Court file before it.

Footnote 2: As noted above, this finding does not implicate CPL Sec. 30.30. If the complaint is facially insufficient, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989).