Opinion
No. 2024-50207 Docket No. CR-014824-23BX
02-20-2024
The People of the State of New York v. Omoya Bailey, Defendant.
For the People: Aziza Azad, Assistant District Attorney Office of the Bronx District Attorney For the Defendant: Abhi Hu, Law Graduate under the supervision of Edie Joseph, Esq. The Bronx Defenders
Unpublished Opinion
For the People: Aziza Azad, Assistant District Attorney Office of the Bronx District Attorney
For the Defendant: Abhi Hu, Law Graduate under the supervision of Edie Joseph, Esq. The Bronx Defenders
Carmen A. Pacheco, Judge
Defendant moves for an order (i) dismissing the accusatory instrument pursuant to CPL §§ 30.30(1)(b) and 170(1)(e) and the New York State Constitution and United States Constitution and (ii) for such additional relief as the Court deems just and proper.
For the reasons set forth herein, defendant's motion to dismiss is granted in its entirety.
Factual and Procedural History
Defendant was arraigned on July 7, 2023 and charged with Penal Law §§ 120.001(1) (assault in the third degree) and 240.26(1) (harassment in the second degree). The defendant acted in concert with co-defendant Travis Marshall ("Marshall"). Each is alleged to have struck the complainant with a closed fist repeatedly about her face and body. As a result of defendants' conduct the complaining witness suffered substantial pain, swelling, bruising to her forehead, swelling to her left foot, multiple lacerations to her chest, and a concussion which required medical treatment at a Bronx hospital. After defendant was arraigned, the case was adjourned to August 14, 2023 for the People to convert the misdemeanor complaint to an information and for filing of its Certificate of Compliance ("CoC").
On the adjournment date of August 14, 2023, the People failed both to convert the complaint to an information and file a CoC. Consequently, the case was adjourned to October 16, 2023. On October 3, 2023, the People served a discovery OneDrive folder on defense counsel off-calendar. The folder contained a document named Signed Supporting Deposition. However, the caption of Supporting Deposition was incorrect. The caption was titled "The People of the State of New York v. Travis Marshall" and was devoid of a docket number. On October 3rd the People also emailed defendant a second supporting deposition that was unsigned but contained the proper caption. Moreover, attached to the email was an Automatic Disclosure Form, CoC, Statement of Readiness ("SoR") and the receipt for the Electronic Document Delivery System filing indicating that the documents were filed with the court. Noteworthy is that by October 3rd 88 days were chargeable to the People.
On October 16, 2023, at the next court appearance, defense counsel objected to the complaint being deemed an information contending that the People failed to serve defense counsel a signed supporting deposition. While on the record, the People then served on defendant, a copy of the signed supporting deposition containing the proper caption. In response, defense counsel requested a motion schedule, which the court granted.
Defendant moved to dismiss the accusatory instrument contending that the People converted the criminal complaint after their CPL § 30.30 time had elapsed. The supporting depositions filed upon defense counsel on October 3, 2023, were defective and insufficient for conversion. First, the supporting deposition shared through the OneDrive folder contained the wrong caption and no indication that it was being served to convert defendant's case. Second, the supporting deposition served through electronic mail was unsigned and unable to cure any hearsay. Consequently, the People failed to convert the misdemeanor complaint to an information prior to expiration of the CPL § 30.30 time.
The People opposed defendant's motion contending that they were not required to convert the misdemeanor complaint prior or simultaneous with their announcement of trial readiness. Specifically, the People maintained that that they were only required to file with the court a valid and facially sufficient accusatory instrument. Consequently, service upon the defendant was unnecessary. Additionally, the People contended that they acted in good faith when attempting to serve a proper supporting deposition on defense counsel therefore the CoC filed on the 88th day was valid.
General Application
A criminal action may be commenced through the filing of an information, a misdemeanor complaint, or a felony complaint. CPL 100.15(1). Relevant to the instant matter is that "[a] misdemeanor complaint is a misdemeanor information but with hearsay allegations permitted" and a defendant cannot be prosecuted by a misdemeanor complaint unless defendant waives prosecution by information. People v. Fernandez, 20 N.Y.3d 44, 50 (2012); CPL § 170.65(3). Additionally, when a misdemeanor action is filed, the complaint must be converted to an information resulting in defendant being arraigned on the information. CPL § 170.65(1). " [I]n order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions." CPL 100.15(1). Furthermore, an information must conform substantially to the requirements of CPL § 100.15 and provide "reasonable cause to believe that the People can prove every element of the crime charged." CPL § 100.40(4); People v. Jordan, 43 Misc.3d 1210(A) (Crim. Ct. NY Cnty. 2014).
Moreover, for an accusatory instrument to be deemed an information, the non-hearsay factual allegations if true establish the elements of each individual charge. CPL § 100.40(1)(c); People v. A.S., 28 Misc.3d 381 (Crim. Ct. NY Cnty. 2010). The requirement that the accusatory instrument establish every element of the crime charged is jurisdictional and cannot be waived. People v. Alejandro, 70 N.Y.2d 133 (1987). However, the second requirement that the accusatory instrument contain non-hearsay allegations is not jurisdictional and is waivable absent a timely pre-trial motion. People v. McGovern, 52 Misc.3d 1202(A) (Crim. Ct. Queens Cnty. 2016) citing People v. Casey, 95 N.Y.2d 354, 362 (2000).
Conversion of the Accusatory Instrument
The People were required to convert the accusatory instrument prior to announcing their readiness for trial. "In passing CPL § 30.30(5-a) the Legislature substantially mirrored the language contained in Senate Bill 1738 and its legislative memorandum, which sought to amend CPL § 30.30 so that all counts of an accusatory instrument must be converted and facially sufficient before the People could announce ready for trial." People v. Matos, 78 Misc.3d 322, 325 (Crim. Ct. Kings Cnty. 2023). Consequently, failure to convert the accusatory instrument is fatal to the People's readiness for trial. People v. Hussein, 177 Misc.2d 139 (Crim. Ct. Kings Cnty 1998); People v. Torres, 151 Misc.2d 682 (Crim. Ct. Kings Cnty. 1991); People v. Walsh, 17 Misc.3d 480 (Crim. Ct. Kings Cnty. 2007)(court granted defendant's motion to dismiss when the People failed to convert the criminal complaint until the 91st day).
In Walsh, prior to the expiration of the speedy trial time, the People unsuccessfully attempted to convert the complaint with a supporting deposition that contained a docket number that was written in after affidavit was signed. People v. Walsh, 17 Misc.3d 480 (Crim. Ct. Kings Cnty. 2007). However, at the time of the signing of the documents, the complainant would be unaware of which docket was being corroborated if defendant had multiple criminal proceedings. Id. Similarly, in the instant matter, the supporting deposition served on defense counsel via the discovery OneDrive folder contained the caption and arrest number for co-defendant Marshall with no information relating to defendant Bailey. Consequently, the complainant would be unaware that the current matter was being converted.
Since the matter was unconverted at arraignment, a supporting deposition was necessary to eliminate any hearsay in the accusatory instrument. A supporting deposition is a written instrument "subscribed and verified by a person other than the complainant" who based upon their own personal knowledge or upon information and belief supplements the factual allegations of the accusatory instrument. CPL § 100.20; People v. Williams, 63 Misc.3d 765 (Crim. Ct. NY Cnty. 2019). "Subscribed means... to sign one's name at the end of a document." People v. Sanchez, 47 Misc.3d 612, 613 (Crim. Ct. Queens Cnty. 2015). A signature includes "any memorandum, mark or sign written, printed, stapled, photograph, engraved, or otherwise placed upon any instrument or writing with the intent to execute or authenticate such instrument or writing." NY Gen. Constr. § 46; People v. Hutchinson, 80 Misc.3d 678 (Crim. Ct. Bronx Cnty. 2023); People v. Brothers, 58 Misc.3d 664 (Crim. Ct. Kings. 2017).
Additionally, an electronic signature can be used to subscribe a supporting deposition. Electronic signatures have the same "validity and effect as the use of a signature by hand." People v. Hutchinson, 80 Misc.3d 678, 685 (Crim Ct. Bronx. Cnty. 2023). "The key is that the endorser intended to leave his mark upon the document, thereby taking some level of responsibility for its contents." People v. Jackson, 17 Misc.3d 788, 791 (Crim. Ct. NY Cnty. 2007). When a supporting deposition is signed electronically, courts require additional proof demonstrating the intent of the person signing the document. People v. Adams, 65 Misc.3d 289 (Crim. Ct. NY Cnty. 2019); People v. Sanchez, 47 Misc.3d 612 (Crim. Ct. Queens Cnty. 2015).
In the instant matter, the supporting deposition did not contain either a written or electronic signature. Hence it is deemed an unsigned supporting deposition that was emailed to defendant on October 3, 2023. Additionally, the supporting deposition could not be cured since the email did not contain language to suggest that the complainant intended to execute the document. People v. Hutchinson, 80 Misc.3d 678 (Crim. Ct. Bronx Cnty. 2023)(criminal complaint remained unconverted when the email submitted by the People contained no text and only the supporting deposition attached).
The court therefore finds that the People's supporting depositions served on October 3, 2023 via OneDrive and electronic mail were insufficient to convert the misdemeanor complaint to an information.
The court also finds that the People's contention that service of the supporting deposition is unnecessary for the People to validly declare their readiness for trial is without merit. The People in the matter before this Court failed to serve a supporting deposition that accompanied or was filed with the accusatory instrument as defined in Criminal Procedure Law § 100.20. However as noted by the People the statute is silent as to any requirement that the supporting deposition needs to be served upon defendant for the People to be ready for trial. Notwithstanding, several court decisions refer to both the filing and serving of the supporting deposition when determining whether the People are ready for trial. See e.g., People v. Richard, 33 Misc.3d 855, 862 (Crim. Ct. NY Cnty. 2011)("if the court finds that the complaint and supporting deposition was properly converted at the time of the service and filing of the signed supporting deposition, and assuming the People's continued readiness, the subsequent intervening period is not chargeable.")(citation omitted); People v. Concepcion, 36 Misc.3d 551(Crim. Ct. NY Cnty. 2012)(finding that the initial supporting deposition served and filed was valid even though it did not contain the date subscribed and verified by the affiant.).
It cannot be controverted that service of the supporting deposition upon defendant is imperative to provide defendant with notice and allow defense counsel to make any challenges to the affidavit. Notice to the defendant is one of the hallmarks of the criminal procedure. See e.g. People v. Harris, 80 Misc.3d 932, 939 (Crim. Ct. Bronx Cnty. 2023)(People must "serve the CoC and SoR on defendant even if the documents are not filed with the court."); People v. Ramirez, 75 Misc.3d 931 (Crim. Ct. Kings Cnty. 2022)(superseding information and supporting deposition served on defense counsel but not filed with the court). Similarly, "a supporting deposition is designed to provide the defendant with such additional information, to enable the defendant to adequately and knowingly prepare for trial." People v. Scherbner, 21 Misc.3d 251, 256 (Just. Ct. Nassau Cnty. 2008)(request for supporting deposition in simplified information); see also People v. Gounden, 42 Misc.3d 221, 224 (Crim. Ct. Queens Cnty. 2013)("if defendant makes a timely request for a supporting deposition, failure to supply one within the time allotted by statute renders the simplified information facially insufficient.").
The court therefore holds that on October 3, 2023, the matter remained unconverted since the two supporting depositions were defective. The court also holds that the supporting deposition must be served on defendant to convert a misdemeanor complaint.
Good Faith and Due Diligence
The court declines to accept the People's contention that the CoC should be deemed valid because they acted with good faith and due diligence in filing and serving the supporting deposition. When evaluating the validity of the People's CoC, the court must determine whether the People acted with good faith and due diligence. People v. Bay, 2023 WL 8629188 (2013); CPL § 245.50(1). Good faith and due diligence by the People is left to the courts to be determined on a case-by-case basis. "[W]hile CPL § 30.30(5) establishes a good faith clause for the People's [CoC] with their discovery requirements (along with the defendant's ability to challenge the good faith assertion), the Legislature made no such good faith clause for a [SoR] in either CPL § 30.03(5) or in CPL § 30.30(5-a)." People v. Matos, 78 Misc.3d 322 (Crim. Ct. Kings Cnty. 2023).
Consequently, since the People failed to state reasons as to its failure to procure a properly signed supporting deposition, the court finds that the People lacked good faith and due diligence.
Speedy Trial Calculation
The People's CPL § 30.30 time commenced on July 8, 2023, the day after the commencement of the criminal action. People v. Stiles, 70 N.Y.2d 765 (1987). The CoC and SoR filed on October 3, 2023 were filed without converting the complaint into an information. The People's CoC and SoR were illusory. Thus permitting the CPL § 30.30 time to continue to tick. At a minimum, the People are charged 100 days from July 8, 2023 until October 16, 2023, the date when the accusatory instrument was converted.
Accordingly, the defendant's motion is granted. This Court finds that the People exceeded 90 days of speedy trial time and this matter is dismissed.
This constitutes the decision of the court.