[*1]
| People v Mezar |
| 2013 NY Slip Op 51516(U) [40 Misc 3d 1240(A)] |
| Decided on September 13, 2013 |
| Criminal Court, Kings County |
| Gerstein, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Criminal Court, Kings County
The People of
the State of New York
against
Jude Mezar, Defendant.
|
2013KN011347
Charles J. Hynes, District Attorney (Selaine Saunders, Esq. of counsel), for
the People.
Steven Banks, Esq., The Legal Aid Society (Emily Poppish, Esq., of
counsel), for Defendant.
Michael Gerstein, J.
The issue in this case involves whether a valid information may be
founded upon a complaint that is only partially converted, that is, contain counts that are
converted while other counts remain unconverted. Defendant seeks dismissal of the
complaint for a violation of the Speedy Trial limitations pursuant to CPL § 30.30,
contending that a valid information cannot contain unconverted charges.
The People Have Not
Exceeded the Time Allotted to them Under CPL §
30.30
A. The Applicable Time Period is
90 Days From the Filing of the Misdemeanor Complaint
Defendant was arraigned on February 14, 2013, and charged with Petit
Larceny (PL § 155.25), Criminal Possession of Stolen Property in the Fifth Degree
(PL § 165.40), both class A misdemeanors, and Unlawful Possession of Marihuana
(PL § 221.05), a violation. The People answered ready on PL § 221.05 only.
The Court record indicates that bail was set and the matter was adjourned to February 19,
2013, pursuant to 170.70.
Penal Law §§ 165.40 & 155.25 are punishable by a maximum of
one year of imprisonment. The People are therefore required to be ready for trial within
90 days pursuant to CPL § 30.30(1)(b) (providing that the People must be ready for
trial within 90 days from arraignment where a defendant is charged with one or more
offenses at least one of which is punishable by a sentence of imprisonment of more than
three months). As Defendant was arraigned on February 14, 2013, the People had 90
days from February 15, 2013, the day after the accusatory instrument was filed, to be
ready for trial.
On February 19, 2013, Defendant made bail. The People were still not ready
on PL § 165.40 or PL § 155.25. The Court adjourned the matter to April 19,
for full conversion and Discovery by Stipulation as to the converted count.[FN1]
On the next date, the People did not serve discovery and were not ready on
PL § 165.40 [*2]or PL § 155.25. The Court
ordered them to serve discovery off-calendar by April 30, 2013, and adjourned the matter
to May 16, 2013, for full conversion and hearings and trial. The People served discovery
off-calendar on April 30, and on May 7, served what purported to be a Superceding
Information and Statement of Readiness (SOR). The "Superceding Information" included
the counts of PL § 165.40 or PL § 155.25, but those counts remained
unconverted.
On May 16, the People answered not ready and requested a 4-day
adjournment. The Court dismissed PL § 155.25 for failure to convert the charge.
The People then moved to dismiss PL § 165.40, leaving PL § 221.05 as the
only remaining charge. The Court adjourned the matter to July 19, for hearings and trial.
On July 19, Defendant served and filed the instant motion, contending that a
valid information may contain only converted charges. In Defendant's view, the presence
of unconverted charges does not permit the People to announce ready on the converted
charge and does not stop the CPL § 30.30 speedy trial clock, notwithstanding that
the converted charge is supported by non-hearsay factual allegations. In response, the
People contend that a count-by-count readiness is permitted and that a valid information
can contain unconverted charges. Specifically, they rely on this Court's opinion in People v. Miraglio, 17 Misc 3d
165, 840 N.Y.S.2d 284 (Kings Co. Crim. Ct., 2007), and its statutory, case law, and
policy analysis supporting the practice of partial conversion.
B. This Court Accepts Partial Conversion, and the People are Therefore
Within Their 30.30 Time as to PL § 221.05
The Court has addressed at length the issue of partial conversion in a
prior decision, People v.
Miraglio, 17 Misc 3d 165, 840 N.Y.S.2d 284 (Kings Co. Crim. Ct. 2007), and
reiterates the analysis, reasoning and holding set forth in that opinion. The statutory
language of CPL §§ 170.30(e) & 100.40, which authorizes dismissal of an
accusatory instrument "or any count thereof," also supports the practice of partial
conversion. As stated in Miraglio, "These sections require a count-by-count
reading of a complaint, and provide for a situation where one count of a complaint could
be dismissed for exceeding the speedy trial time; a situation that could only arise if the
complaint was not fully converted." Additionally, while CPL § 30.30 provides a
time limit within which the People must be ready for trial, it does not necessarily require
them to be ready on every count. Miraglio, 17 Misc 3d at 173.
Furthermore, there is substantial case law supporting partial conversion.
See People v. Brooks, 190 Misc 2d 247, 736 N.Y.S.2d 823 (App. Term 1st Dept.
2001); People v. Gray, 7 Misc 3d 127(A), 801 N.Y.S.2d 239, 2004 WL 3255318,
2004 NY Slip Op. 51864(U) (App. Term 2d Dept. 2004) and People v. Castro,
2001 WL 1691976, 2001 NY Slip Op. 50084(U) (App. Term 1st Dept. 2001).[FN2] While Defendant rejects
the practice of "partial conversion" [*3]expressed in
Brooks, Gray, Minor, and Miraglio, Defendant does not
cite any appellate case that has clearly and unambiguously ruled partial conversion
impermissible.
Defendant cites on People v. Ausby, 40 Misc 3d 1219(A), Slip
Copy, 2013 WL 3927852 (Table) (Bronx Co. Crim. Ct. 2013), which offers a thorough
and robust analysis of partial conversion, but ultimately finds that a valid information
cannot contain unconverted counts. To our knowledge, Ausby is the only
reported case subsequent to our holding in Miraglio to reject partial conversion.
For the reasons set forth below, the Court, however, respectfully declines to adopt the
holding of Ausby.
As the precedential cases regarding partial conversion were discussed at
some length in Miraglio, the Court will respond only briefly to the reasoning of
People v. Ausby. While Ausby considered People v. Brooks to
"contradict both the plain wording of the statute involved and Court of Appeals
precedent," 40 Misc 3d 1219(A) at *6, it also distinguished Brooks on the facts.
This Court finds no need to rely primarily on Brooks, especially in view of the
numerous cases cited above which are in accord, having noted in Miraglio that
Brooks rested its acceptance of partial conversion on People v. Dion, 93
NY2d 893, 711 N.E.2d 963, 689 N.Y.S. 2d 685 (1999), which we then deemed a "slim
reed for the holding." 17 Misc 3d at 171.
In the present case, the distinctions from Brooks noted by the
Ausby court do not apply. Thus, the Ausby court noted that Defendant
had constantly disputed, at arraignment and every calendar call, the People's claim of
conversion and readiness. At bar, the court file does not indicate that Defendant raised
such a dispute as to the converted count, and Defendant has not submitted any transcript
so indicating. Rather, Defense Counsel's affirmation states only that she asserted
"constant objections that the charges of petit larceny and criminal possession of stolen
property were not supported in the criminal complaint," (Poppish Aff. 9), thus failing to
alert the People or the Court of any objection to their assertion of readiness on the count
of PL § 221.05. Moreover, the Ausby court notes that as it sits in the First
Department, it is not bound by People v. Minor, 144 Misc 2d 846 (App. Term 2d
Dept. 1989) or People v. Gray, 7 Misc 3d 127(A) (App. Term 2d and 11th Jud.
Dists. 2004). However, this Court, sitting in Kings County, within both the Second
Department and the Second Judicial District, is of course bound by both opinions.
This Court's Miraglio opinion recognized the controlling authority
which supported partial conversion, but relied on much more than that. The logic of
Defendant's position is, at bottom, flawed, particularly in view of the practicalities of
Criminal Court. Here, the People dismissed the unconverted counts on the 91st day of
speedy trial time, thus obviating any issues as to double jeopardy resulting from multiple
trials under the same case. According to Defendant, this is not sufficient, as the
unconverted counts should have been dismissed before 30.30 time elapsed. At the very
least, this would require an additional calendaring of the case, perhaps on the 89th day,
so that the People could properly declare readiness on the converted count,[FN3] thus requiring the People
to make what might be considered a Hobson's choice of [*4]dismissing unconverted counts before the expiration of
speedy trial time, or risking dismissal of the entire complaint if they waited, as they did
here, until after its expiration. To so require would amount to a judicial re-writing of the
time limits set forth in CPL § 30.30, and would effectively preclude the People from
converting counts on the 90th day as provided in the statute. This Court declines to so
amend the statute by judicial fiat.
Additionally, as noted in Miraglio, the position advocated by
Defendant invites the defense to silently lie in wait, not raising any objection to partial
conversion until after the expiration of 30.30 time, and then move for dismissal of
converted counts on the grounds now asserted by Defendant. See Miraglio, 17
Misc 3d at 174. This Court fails to understand how this game of "gotcha" can serve the
interests of justice, and we decline to infer that the statutory draftspersons could have
intended such a result.
Finally, the Court is not unaware of the potential problems, some of which
are noted in Defendant's motion, with partial conversion. Thus, if the People fail to
dismiss unconverted counts even after the expiration of speedy trial time, and answer
ready for trial, the Court would not proceed with trial where only some counts of a
complaint are converted while others remain unconverted. But that is not our case, as
there is no indication that Defendant ever answered ready for trial. While defense counsel
argues that no appellate case has explained how a trial could commence until
non-converted counts were disposed of, (Def. Aff. 8), we suspect that if such a situation
ever arose, the Court would have the authority to dismiss any unconverted counts, either
on oral motion or sua sponte, if both sides answered ready for trial, thereby
avoiding any possibility of two trials for different counts under the same accusatory
instrument.
The converted count in the Complaint, Unlawful Possession of Marihuana,
as to which the People announced ready on February 14, 2013, is not affected by the
failure to convert the other counts prior to their dismissal on May 16.
CONCLUSION
The
People are chargeable for four days (for the period between May 16 and July 19, 2013)
and have not exceeded their Speedy Trial time limit.[FN4] Defendant's motion to dismiss PL
§ 221.05 pursuant to CPL § 30.30 is therefore DENIED.
Dated: September 13, 2013
Brooklyn, New York
______________________________
MICHAEL GERSTEIN, J.C.C.
Footnotes
Footnote 1: We note that even were
the Court to disapprove of partial conversion, the adjournment for discovery on PL
§ 221.05 is deemed an adjournment at the request of Defendant, stopping the CPL
§ 30.30 clock on that count. CPL § 30.30(4)(a); People v. Khachiyan, 194
Misc 2d 161, 752 N.Y.S.2d 243 (Crim. Ct. Kings Co. 2002). Given our ruling below, it
is unnecessary to rule on this adjournment.
Footnote 2: See also People v.
Gonzalez, 168 Misc 2d 136, 645 N.Y.S.2d 978 (App. Term 1st Dept. 1996), People v.
Hansen, N.Y.L.J. Aug. 3, 1999, at 22, col. 1 (App. Term 1st Dept. 1999), People v.
Ishmell, 13 Misc 3d 1236(A), 831 N.Y.S.2d 355, 2006 WL 3298291 (Crim. Ct. Kings
Co. 2006), People v. Shadrin, 2002 WL 31748580, 2002 NY Slip Op. 50468(U) (Crim.
Ct. Kings Co. 2002).
Footnote 3: Moreover, Defendant
would then presumably assert that the People should be charged 89 days for the
converted count, putting them on the eve of dismissal.
Footnote 4: The Court has
considered and denies Defendant's application to charge the People time for motion
practice.