The People of
the State of New York,
against
Alexander Blum, Defendant.
|
CR-1017-14
Jonah Triebwasser, J.
By Notice of Motion dated March 5, 2015, defendant, through his attorney Michael
Pollok, Esq., requests the relief which is detailed below.
The People, through their attorney, Senior Assistant District Attorney
Margaret Walker, responded on March 26, 2015, as detailed below. Defendant had the
opportunity to file a reply, but declined to do so. Neither side requested oral argument
and the motion was marked fully submitted on April 6, 2015.Lack of Facial Sufficiency
Defendant seeks to dismiss the misdemeanor information herein alleging
violation of section 130.52 of the Penal Law (Forcible Touching) as being facially
insufficient pursuant to sections 100.15 of the Criminal Procedure Law of the State of
New York (CPL). The People deny that the information was facially
insufficient.
The information was in the name of the alleged victim. However, it is now
brought to the Court's attention that this information was in fact signed by Trooper
Daniel Scali of the New York State Police. This renders this information to be defective
on its face and it is dismissed pursuant to section 100.15 CPL which requires, intra
alia, that the information ". . .must be subscribed and verified by a person known as
the complainant.'" As the complainant herein (the alleged victim) did not subscribe and
verify this information, it is dismissed as defective on its face.Speedy trial issue
The information
alleging unlawful imprisonment in the second degree in violation of section 135.05 of
the Penal Law was brought in the name of and was signed by Trooper Scali. However,
Trooper Scali notes that the allegations of fact in the information were based on the
supporting deposition of the alleged victim, which was attached to the information. The
supporting [*2]deposition submitted to the court with the
Trooper's information on November 20, 2014, was unsigned. A signed copy of the
supporting deposition was not submitted to the Court until February 26, 2015, some 98
days later.
CPL Section 100.40 requires that:
1. An information, or a count thereof, is sufficient on its face when: (a) It
substantially conforms to the requirements prescribed in section 100.15; and (b) The
allegations of the factual part of the information, together with those of any
supporting depositions which may accompany it, provide reasonable cause to believe
that the defendant committed the offense charged in the accusatory part of the
information; (emphasis added)
The information
here was defective in that the supporting deposition upon which the complainant trooper
relied was unsigned, and was therefore a nullity. As the People concede, pursuant to
section 30.30 CPL, the speedy trial clock begins to tick against the People where, as here,
the defendant appears in Court for arraignment on the return date of the appearance
tickets (such appearance in the case at bar occurred on November 20, 2014.) People
v. Parris, 79 NY2d 69 (1992). Ninety-eight days passed before the defect in the
information was cured. This requirement (of proper jurisdiction), is of constitutional
dimension, and is not waivable (see, People v Scott, 3 NY2d 148 (1957), even by
defense counsel consenting to adjournments.[FN1]
The objection that the information does not state a crime is also not waivable. Scott,
op. cit.
Section 30.30 requires that the People stand ready for trial within 90 days
where, as here, defendant was accused of a misdemeanor. Inasmuch as the information
was fatally defective during, and past, this 90 day period, it is dismissed.
Having dismissed the informations herein for the reasons articulated,
supra, the Court sees no need to address defendant's other contentions.
This decision also constitutes the Order of this Court.
Dated:April 14, 2015
Red Hook, New York
SO ORDERED.
_________________________________________
JONAH TRIEBWASSER,
Justice, Town of Red Hook
Footnotes
Footnote 1:Defense counsel and the
Prosecutor disagree as to whether the adjournments had in this case were on consent.
Given the Court's ruling on the jurisdictional defect, the issue of consent to the
adjournments is moot.