County Court, Essex County, February 15, 2018

Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), for plaintiff.

Brandon E. Boutelle, Public Defender, Elizabethtown (Joshua Ackerman of counsel), for defendant.

Motion by the People to return a felony complaint and other papers to the local criminal court for reconsideration of the action to be taken thereon (CPL 180.40).

This criminal action was commenced on June 20, 2017, by the filing of a felony complaint charging the defendant with making a terroristic threat (Penal Law § 490.20), a class D violent felony. The charges arise out of the defendant's alleged postings on Facebook of certain statements about a New York State Trooper having the initials "kk" being "better judged with his face in the dirt begging for air! And I for one don't let scum up for air," and "its hard to breath [sic] with 30 caliper [sic] holes in your bag pipes." The defendant also is alleged to have posted statements purportedly directed at law enforcement and members of the New York State Police, stating, "I will never need any law enforcement. I've got more ammo and not a junk ar-15 which in certain parameters is illegal to citezins [sic] but cuomos [sic] army can have" and "If you wear a purple tie and a Stetson and you fuck around you will suffer an ill fate." The case was divested to this court on October 5, 2017, by the filing of the felony complaint and other papers with the clerk of this court.

The People now move to return the felony complaint and other papers to the Chesterfield Town Court pursuant to CPL 180.40. The only papers submitted are the notice of motion and the supporting affirmation of James E. Martineau Jr., Esq., an Assistant District Attorney, dated January 2, 2018, with a single exhibit consisting of a signed plea agreement. No papers in support or otherwise in response to the motion have been served by the defendant. The plea [*2]agreement provides for the defendant to enter a guilty plea to aggravated harassment in the second degree (Penal Law § 240.30), a class A misdemeanor, {**59 Misc 3d at 403}and receive a split sentence of 10 weekends in the county jail, if the presentence report so recommends, and three years' probation requiring substance abuse and mental health evaluations and treatment, plus a three year "refrain from" order of protection. The People do not allege that defects exist in the felony complaint. Rather, the People seek return of the felony complaint because "it was determined that based upon the facts and circumstances of the case a misdemeanor disposition was appropriate" and the New York State Trooper referenced in the defendant's Facebook posts does not object to the proposed disposition.

Criminal Procedure Law § 180.40 provides that

"[w]here the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing that the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an order if it is satisfied that the felony complaint is defective or that such action is required in the interest of justice."

For reasons unknown, the People have chosen to keep secret "the facts and circumstances" of this case which warrant return of the felony complaint to the local criminal court. Notably, it is the court which determines whether a felony complaint should be returned to the local criminal court, not the prosecutor. At the very least, it is incumbent upon the movant to furnish some factual basis in order for the motion to be granted. This is so because CPL 180.40 and 180.50 must be read together.

"A felony complaint may only be converted to a misdemeanor accusatory instrument pursuant to CPL 180.50. . . . An attempted reduction of a felony complaint, even though acquiesced to by defendant, not done pursuant to the requirements of CPL 180.50 is invalid and of no legal effect . . . (People ex rel. Leventhal v Warden, 102 AD2d 317; People v Stoneburner, 129 Misc 2d 722; People v Young, 123 Misc 2d 486; see, People v Harper, 37 NY2d 96, 99)." (People v Minor, 144 Misc 2d 846, 847-848 [App Term, 2d Dept, 2d & 11th Jud Dists 1989]; see also {**59 Misc 3d at 404}People v Gordon, 24 Misc 3d 462 [Crim Ct, Kings County 2009].)

The authority of a local criminal court to reduce a felony offense to a non-felony offense is limited to two situations only. The first is when "there is not reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense in question" (CPL 180.50 [2] [a]). The second instance is when even though "there is reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense, the court . . . is satisfied that such reduction is in the interest of justice, and . . . the district attorney consents thereto" (CPL 180.50 [2] [b] [i]-[ii]). CPL 180.50 "is not . . . a plea bargaining statute. It is nothing more than a safety valve, so to speak, designed to take care of the instance where the charge of any felony is unwarranted." (People v Gardner, 78 Misc 2d 744, 755 [Sup Ct, Westchester County 1974] [emphasis omitted].)

Thus, when a superior court determines pursuant to CPL 180.40 that a divested felony complaint is to be returned to a local criminal court, the superior court is acting in the place and stead of the local criminal court in both making the requisite inquiry that the latter would [*3]undertake (CPL 180.50 [1]) and determining that the felony charge must be reduced to a non-felony offense. A superior court order returning a felony complaint to a local criminal court automatically constitutes a command, not a mere recommendation, to the local criminal court to proceed in accordance with CPL 180.50 (3) to reduce the felony charge to a non-felony offense without the need, or authority, for the local criminal court to conduct any inquiry or make any determinations under CPL 180.50 (1)-(2). The "order does not automatically convert the felony charge . . . to the . . . misdemeanor . . . [n]or does the CPL 180.40 order give the defense the right to request that the matter be again waived to the . . . grand jury." (People v Massaro, 196 Misc 2d 478, 483 [Webster Just Ct 2003].)

Although CPL 180.40 is silent on the need for a superior court to conduct an inquiry akin to what is required of a local criminal court under CPL 180.50 (1), the necessity of such an inquiry is implicit. The return of a felony complaint to a local criminal court is permissive, not mandatory, since the statute states that "[t]he superior court may issue such an order" (CPL 180.40 [emphasis added]). This does not mean, however, that a court has unfettered discretion or that a motion is to be granted merely for the asking.{**59 Misc 3d at 405}

"[W]e have emphasized that the 'word "may" clearly connotes discretion.' Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994)).

"At the same time, '[d]iscretion is not whim.' Martin, 546 U.S., at 139. '[I]n a system of laws discretion is rarely without limits,' even when the statute 'does not specify any limits upon the district courts' discretion.' Flight Attendants v. Zipes, 491 U.S. 754, 758 (1989). '[A] motion to a court's discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' Martin, 546 U.S., at 139 (quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (CC Va.1807) (Marshall, C.J.); alteration omitted)." (Halo Electronics, Inc. v Pulse Electronics, Inc., 579 US —, —, 136 S Ct 1923, 1931-1932 [2016].)

The People have not alleged that the felony complaint is defective, and have failed to submit facts establishing that it is defective or that the interests of justice require return of the case to local criminal court for a reduction of the felony charge to a non-felony offense. As a result, this court is prevented from performing its function under CPL 180.40 and from exercising "its judgment . . . guided by sound legal principles." (Halo Electronics Inc., 579 US at —, 136 S Ct at 1932.) The motion must therefore be, and hereby is, denied.