Supreme Court, Bronx County, March 25, 2019

Bronx Defenders (Avinash Samarth of counsel) for defendant.

Darcel D. Clark, District Attorney (Daniel Lim of counsel), for plaintiff.

This case concerns the consequences of the prosecution's failure to attach and file a special information at the time the indictment is filed. Count one of the pending indictment charges the defendant with unauthorized use of a vehicle in the second degree in violation of Penal Law § 165.06.^[FN1] A person is guilty of unauthorized use of a vehicle in the second degree when that person commits the crime of unauthorized use of a vehicle in the third degree as defined in Penal Law § 165.05 (1) and has been previously convicted of the crime of unauthorized use of a vehicle in the third degree within the preceding 10 years.

The People presented legally sufficient evidence in the grand jury to support this charge, including the elevation element. The defendant's previous conviction of unauthorized use of a motor vehicle in the third degree in violation of Penal Law § 165.05 (1) on November 7, 2013, was introduced during the grand jury presentation. However, the indictment that was filed does not include a copy of a special information attachment to indicate this charge is an elevation from an A misdemeanor to an E felony. Defendant was arraigned on the indictment and made no objection at the time. The People filed a special information on February 14, 2019.

Criminal Procedure Law § 200.60 provides that the previous conviction [*2]has to be charged in a special information, not in the indictment. After the commencement of trial the defendant must be arraigned on the special information. The defendant may elect to either admit the element or deny or remain mute,{**63 Misc 3d at 341} in which case the prior conviction becomes an element of the offense to be proved. (See CPL 200.60.)

In this case, the defendant was charged in the indictment with one count of unauthorized use of a vehicle in the second degree in violation of Penal Law § 165.06 (E felony) and one count of unauthorized use of a vehicle in the third degree in violation of Penal Law § 165.05 (1) (A misdemeanor). The only difference between the two charges is that the first count, the E felony charge, contains the enhancing element that the defendant has been previously convicted of the crime of unauthorized use of a vehicle in the third degree as defined in Penal Law § 165.05 (1) within the past 10 years.

The defendant argues simply that the People violated the statute by failing to file a special information accompanying the indictment charging the defendant with a previously convicted specified offense. The defense contends that the remedy for the violation is dismissal. The People oppose the motion, admitting they overlooked the statutory requirement but claiming that the failure to attach and file the special information is not a jurisdictional defect; moreover there is no prejudice to the defendant and the defect was cured when the "Be It Remembered" form was filed on February 14, 2019.

Analysis

Criminal Procedure Law § 200.60 (2) provides that an indictment with a felony that includes a prior conviction as a necessary element must be accompanied by a special information filed by the People with the court charging that the defendant was previously convicted of a specified offense. The legislative history of Criminal Procedure Law § 200.60 instructs that the statute was designed to protect the defendant by preventing any reference of a defendant's prior conviction to come before a jury so as to not prejudice the defendant. The procedure under CPL 200.60 allows the defendant to admit or deny a prior conviction outside the jury's presence at arraignment of the special information. The arraignment on the special information must be conducted at the commencement of the trial and before the close of the People's case. (CPL 200.60 [3].) Should the defendant admit the prior conviction, the People may not refer to the special information during the trial nor adduce any evidence concerning the previous conviction. (CPL 200.60 [2].)

When the defendant was arraigned on the indictment, he did not raise the issue that the special information was not filed simultaneously with the indictment. The defendant first{**63 Misc 3d at 342} brought up this issue in his motion to inspect and dismiss or reduce the charges in the indictment. The defendant relies on the case of People v Cooper (78 NY2d 476, 478 [1991]) for the proposition that the special information must be filed at the same time as the indictment, and the Court of Appeals does cite the statute for this proposition. More importantly, however, the Court in People v Cooper discusses the underlying rationale for the statute, concluding that the contextual fact that the defendant's license had been revoked belonged in the information, and not the indictment, to avoid undue prejudice to the defendant: "the protection afforded by CPL 200.60 can be effectuated only by reading the statute to require resort to the special information procedure for all of the conviction-related facts that constitute the enhancing element." (Id. at 483.) Although in dicta, commenting on the delineation of clear procedures as a feature of [*3]Criminal Procedure Law § 200.60 (2), the High Court's focus was not strict adherence to the timeline of the procedures. Rather People v Cooper emphasized that courts must be vigilant so defendants are not prejudiced at trial by the disclosure of their prior criminal acts. In fact, the statute does not specify a time limit for the filing of a special information. The statute simply reads, "[a]n indictment for such an offense must be accompanied by a special information" (CPL 200.60 [2]). This section, read in conjunction with CPL 200.60 (3), arguably allows the People to file and serve a special information upon the commencement of trial but before the close of the People's case and still be considered timely depending on the circumstances.

In the context of the defendant pleading guilty under the indictment, the First Department has held that a violation of CPL 200.60 (2) constitutes a non-jurisdictional, procedural defect that can be waived. (See People v Giuliano, 52 AD2d 240 [1st Dept 1976]; see also People v Brown, 113 AD3d 632 [2d Dept 2014]; People v Williamson, 301 AD2d 860 [3d Dept 2003].) In People v Viano (287 AD2d 584, 584-585 [2d Dept 2001]),^[FN2] the Second Department found the trial court had discretion to allow the prosecution to file the necessary special information prior to the close of their case.

The defense has not suggested that the late filing has at all affected pretrial procedures here such as negotiations, discovery{**63 Misc 3d at 343} or investigation. (See Mem of St Dist Attorneys Assn in Support, L 1961, ch 642, 1961 NY Legis Ann at 45.) The recent filing cures the non-jurisdictional error. When no prejudice has been established or even alleged, the court's discretion is best exercised to allow the prosecution to go forward rather than dismissing the indictment and sending the People to re-present what was an adequate presentation in the first place. At this juncture, the defendant suffers no prejudice by an exercise of discretion to allow the filing as of February 14, 2019. (See People v Viano, 287 AD2d 584 [2d Dept 2001].)

Conclusion

After reviewing of the grand jury minutes, the indictment and the special information, the court finds that the evidence before the grand jury was legally sufficient to support count one in the indictment. The defendant's motion to dismiss the indictment for a defect in the District Attorney's instructions on the law to the grand jury is denied as to count one.