City Court of Poughkeepsie, February 7, 2020

Thomas N.N. Angell, Public Defender, Poughkeepsie (Jason Richland of counsel), for defendant.

William V. Grady, District Attorney, Poughkeepsie (Miriam Citro of counsel), for plaintiff.

Defendant moves by notice of motion, dated November 7, 2019, seeking to dismiss the declaration of delinquency (DOD) and the notice of appearance filed in this matter,^[FN1] dated July 26, 2019, on the grounds that defendant's rearrest on new charges is insufficient, as a matter of law, to form the basis of a violation pursuant to CPL 410.30. The People have not filed any opposition despite having been duly served. Having considered the motion and having duly deliberated thereon, the court finds and determines the motion as follows:

On March 10, 2019, defendant was arrested under the instant docket (CR-1371-19) for six different offenses: resisting arrest in violation of Penal Law § 205.30, criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, obstructing governmental administration in violation of Penal Law § 195.05—all class A misdemeanors—and unlawful possession of marijuana in violation of Penal Law § 221.05, open container in violation of Local Ordinance § 14-19, and littering in violation of Local Ordinance § 9-1—all violations. Approximately one month later, on April 12, 2019, defendant pleaded guilty to criminal [*2]possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03 to cover all charges, and was sentenced to a conditional discharge together with a $250 fine.^[FN2] Thereafter, defendant violated the conditions of his sentence when he failed to pay{**67 Misc 3d at 530} his fine,^[FN3] and was rearrested on May 22, 2019 (under docket No. CR-2842-19), and charged with criminal possession of marijuana in the fifth degree in violation of Penal Law § 221.10 (2), a class B misdemeanor. A DOD, dated July 26, 2019, was filed on the instant matter, and defendant was arraigned on the DOD on August 9, 2019. A hearing on the DOD was adjourned at the defendant's request, for purposes of filing motions, including the instant motion. Defendant's first motion, dated October 18, 2019, sought for the undersigned to recuse itself, which motion was denied by decision and order, dated November 19, 2019. Defendant's second motion, dated November 7, 2019, sought to reduce the marijuana charges (docket No. CR-2842-19) pursuant to CPL 210.40 and People v Clayton (41 AD2d 204 [1973]), and same was denied pursuant to a decision and order, dated February 7, 2020. Defendant's third motion (docket No. CR-2842-19) was an omnibus motion, dated November 7, 2019, that was denied in part, and granted in part, pursuant to a decision and order, dated February 7, 2020. Defendant's fourth motion, dated November 7, 2019, sought to withdraw his guilty plea pursuant to a writ of coram nobis, and this motion was denied via decision and order, dated February 7, 2020. Now, defendant's instant motion, dated November 7, 2019, seeks to dismiss the DOD filed in this matter on the grounds that it is facially insufficient. The instant motion is denied as well.

The declaration of delinquency and notice of appearance at issue is based upon defendant's rearrest on May 22, 2019, for which an accusatory instrument was filed and defendant was arraigned upon the charge of criminal possession of marijuana in the fifth degree in violation of Penal Law § 221.10 (2), a class B misdemeanor (docket No. CR-2842-19). Defendant's reliance upon People v Diaz (101 AD2d 841 [2d Dept 1984], citing People v Amaro, 79 Misc 2d 499, 500 [1974]) to dismiss the DOD based upon the proposition that a rearrest for a new offense is legally insufficient to support the filing of the instant declaration of delinquency is without merit.{**67 Misc 3d at 531}

As a preliminary matter a declaration of delinquency (DOD) is a procedural device used to toll the period of the conditional discharge so that the period does not expire while the defendant has either absconded or while the court considers action to be taken on a possible violation of conditions. (See Penal Law § 65.15 [2]; Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 410.30.) The declaration must be based upon (1) reasonable cause to believe that the defendant violated a condition of the sentence otherwise the DOD will not toll the running of the sentence; and (2) the court must promptly take reasonable and appropriate steps to resolve the alleged violation. (Id.) Moreover, a hearing on a violation of probation or a conditional discharge is not a criminal action, but rather a proceeding brought after [*3]the completion of the criminal action, whose purpose is to determine if defendant's actions violated the terms and conditions of his original sentence. (Matter of Darvin M. v Jacobs, 69 NY2d 957, 958 [1987]; People v Wong, 180 Misc 2d 749 [Sup Ct, Queens County 1999].) Since the filing of a DOD is not a criminal action, it should come as no surprise that there are no published cases dismissing a "declaration of delinquency and notice of appearance" on the grounds that it is facially insufficient—the basis of this motion. Likewise, similar to People v Diaz and People v Amaro, the reported cases predominantly revolve around violations of probation.

Nonetheless, defendant relies upon People v Diaz in support of his motion, but People v Diaz is distinguishable from this matter because (1) defendant Diaz had been sentenced to probation, not a conditional discharge; (2) the court's re-sentencing was upheld in People v Diaz and the DOD was not challenged; and importantly (3) the defendant here was not just rearrested, but he was formally charged, arraigned, and has been represented by counsel, and a full hearing will be conducted on the issue of whether he committed the act of which he stands accused in the declaration of delinquency and specifications. (See People v Davis, 161 Misc 2d 533 [Sup Ct, Queens County 1994].)

Defendant Diaz had pleaded guilty to robbery in the third degree and was sentenced to five years of probation. Defendant absconded and committed a series of crimes, failed to report to his probation officer, and failed to appear before the court in connection with several new arrests and bench warrants. Probation recommended that the defendant be declared delinquent{**67 Misc 3d at 532} and the court "so ordered" the DOD, issuing a bench warrant for the DOD. Defendant's whereabouts remained unknown for more than two years. Ultimately, defendant was found to be in violation of his probation, his probation was revoked, and he was sentenced to prison. Defendant appealed on the grounds that his probation was never tolled by the filing of a DOD. The Appellate Division affirmed the lower court's judgment which revoked his probation and imposed a sentence of imprisonment. Focusing on whether the lower court had taken reasonable and appropriate steps to resolve the alleged DOD violation in a prompt manner, the Appellate Court held that any delay in holding a revocation hearing was caused by defendant's own conduct.

For purposes of this motion, the Court held in relevant part,

"Further, we observe that while, by itself, evidence that a probationer has been arrested for a new offense is not sufficient 'reasonable cause' to support issuance of a warrant or a declaration of delinquency (People v Amaro, supra., p. 500, quoting from CPL 410.30), where, as here, a probationer absconds from the facility he was to be associated with as a condition of his probation, fails to report to his assigned probation officer and is arrested in another county based upon other charges, sufficient reasonable cause to believe that the probationer has violated a condition of his sentence is demonstrated (see CPL 410.30), and based upon such conduct, revocation of probation and the imposition of a term of imprisonment is proper (see, e.g., People v King, 55 AD2d 972)" (People v Diaz at 842-843).

Importantly, the "so ordered" bench warrant issued on the declaration of delinquency in People v Diaz was not challenged by defendant as facially insufficient, nor did the Court ever intimate that it was facially insufficient—for again, this is not a criminal proceeding. Rather, the Appellate Division affirmed the lower court's adjudication of the defendant which found him to be in violation of probation and sentenced him to a term of imprisonment. (People v Diaz.) As such, defense counsel's reliance upon People v Diaz for dismissal of the DOD and notice of appearance is misplaced.

Furthermore, People v Diaz specifically relies upon and cites People v Amaro (79 Misc 2d 499 [Sup Ct, NY County 1974]) as rationale for its holding. In People v Amaro, the court denied an ex parte application that the defendant be declared delinquent{**67 Misc 3d at 533} and declined issuing a bench warrant for a violation of probation based upon a new arrest. Focusing upon the court's responsibility to promptly take reasonable and appropriate steps to resolve the alleged DOD, the court held that the court should not issue a bench warrant for a declaration of delinquency unless the court is satisfied that the probationer would not respond to service of a notice to appear. (People v Amaro, 79 Misc 2d at 501; see Penal Law § 65.00 [2], [3]; CPL 120.20 [3]; 410.10, 410.30, 410.40.) "If the probationer fails to respond to the notice, such omission may constitute a violation of the conditions of his probation." (People v Amaro at 501.)

Turning to the facts of this case, this court never issued a bench warrant for the declaration of delinquency, but rather issued a "Declaration of Delinquency and Notice to Appear" as can be discerned from the document itself, together with the language within the notice, to wit:

"ORDERED the defendant is declared delinquent, subject to a final determination as to such alleged delinquency. Please take notice that this court, having reasonable cause to believe that you violated a condition of the sentence imposed on 04/12/2019, it is hereby ORDERED, that you must appear before this Court on 08/09/2019 at 9:00 AM[.] Failure to appear may result in a warrant for your arrest being issued by the Court." (Richland affirmation, dated Nov. 7, 2019, exhibit A [emphasis added].)

Notably, the notice issued by this court instructed the defendant to appear and answer the declaration of delinquency filed by the court—and same was properly issued for not only was defendant rearrested, he had been formally charged with a crime.

It is of importance to note that the cases that follow People v Diaz are cited for the proposition that declarations of delinquency must be promptly adjudicated and that the People must reasonably and promptly produce the defendant to answer the DOD—not for the proposition that a DOD based upon a rearrest, and filing of charges, is insufficient to issue a notice of appearance, as defense counsel contends. (E.g. People v Davis, 161 Misc 2d 533 [Sup Ct, Queens County 1994]; People v Horvath, 37 AD3d 33 [2d Dept 2006] [the consequences for failure to comply with the statutory requirement that defendant, who is alleged to be in violation of probation, be brought promptly before the court to answer DOD, and where probation delays{**67 Misc 3d at 534} without explanation, a motion to dismiss the DOD is proper]; People v Cook, 295 AD2d 622 [2d Dept 2002] [although court must promptly take reasonable and appropriate action to cause defendant to appear before it following a DOD, delay in the final adjudication, occasioned by defendant's own conduct, will not be attributed to the People]; People v Wong, 293 AD2d 502 [2d Dept 2002] [Once a warrant issues on a DOD, plaintiff must use due diligence to execute the warrant and secure defendant's presence before the court. Due diligence is not implicated, however, when defendant hides or evades detection]; People v Jacks, 235 AD2d 247 [1st Dept 1997] [postponements of hearing, without defendant's consent, on a violation of probation deprived court of jurisdiction]; People v Johnson, 173 AD3d 1446 [3d Dept 2019] [the commission of an additional criminal offense constitutes grounds for revocation of probation irrespective of whether such fact is specified as a condition of probation, pursuant to CPL 410.10 (2)]; People v Finch, 160 AD3d 1212, 1213 [2018] [defendant need not be convicted of the additional criminal offense for it to serve as a basis for revocation of probation, but need more than evidence of an arrest to support a finding of a violation of probation].) Neither Diaz, nor any of the cases following People v Diaz, are cited for the proposition that evidence an offender has been arrested for a new offense and charged with a crime, and is awaiting a full hearing on the DOD, is legally insufficient to support the filing of a declaration of delinquency and notice of appearance—the finding defense counsel asks this court to adopt.

In short, defendant's reliance upon People v Diaz (101 AD2d 841 [2d Dept 1984]) to dismiss the DOD and notice of appearance as facially insufficient is without merit. The filing of a DOD is not a criminal action but a proceeding to determine if defendant's actions violated the conditions of his original sentence. Furthermore, the law does not require that one sentenced to a conditional discharge be tried and convicted for a new crime before his rearrest can be used as a basis for filing a DOD (People v Conway, 263 AD2d 548 [3d Dept 1999]), especially here, where a criminal charge was filed with the court and defendant was arraigned on that charge, is represented by an attorney, and has the benefit of engaging in a full hearing on the issue of whether he committed the act of which he stands accused in the declaration of delinquency and specifications. (See People v Davis.)

Therefore, based upon all of the foregoing, it is hereby ordered that the defendant's motion to dismiss the declaration{**67 Misc 3d at 535} of delinquency and notice of appearance as facially insufficient is denied.