Opinion
No. 2013QN018508.
06-12-2014
The PEOPLE of the State of New York v. Matthew DONADEO, Defendant.
Richard A. Brown, District Attorney by John Ruane, Esq., Queens County, for the People. The Legal Aid Society by Peter E. Shapiro, Esq., for the Defendant.
Richard A. Brown, District Attorney by John Ruane, Esq., Queens County, for the People.
The Legal Aid Society by Peter E. Shapiro, Esq., for the Defendant.
Opinion
DONNA MARIE GOLIA, J.
The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law (“PL”) § 220.03, a class A misdemeanor. The defendant moves for an order, inter alia, dismissing the information as improperly amended, or in the alternative dismissing the information pursuant to Criminal Procedure Law (“CPL”) § 30.30. For the following reasons, the defendant's motion to dismiss is denied.
Facts and Procedural History
The defendant was arrested on April 5, 2013 and charged by a Criminal Court complaint, sworn to by Police Officer Michelle Williams. That complaint was based on the supporting deposition of a Police Officer Coffey. Specifically, the complaint alleges that on or about April 5, 2013, at approximately 8:13 p.m., at the intersection of Rockaway Boulevard and 100th Street, here in Queens County, the defendant possessed three (3) blue envelopes of heroin, which the officer recovered from the defendant's right pants pocket. The complaint also alleges that the officer knew the substance in the envelopes to be heroin based upon the officer's experience as a police officer and the officer's training in the packaging and identification of controlled substances.
However, the supporting deposition annexed to the complaint was in fact sworn to by a Police Officer Gridley. The supporting deposition, which but for an accusatory portion reads much like a criminal court complaint, states that on April 5, 2013, at 12:45 p.m ., at 100th Street and Rockaway Boulevard, Police Officer Gridley recovered three (3) blue envelopes of heroin from the defendant's right pants key pocket. The supporting deposition further states that Police Officer Gridley knew the substance to be heroin based on the officer's training in the identification of drugs, the officer's prior experience with drug arrests, and the officer's observations of the packaging, which is characteristic of heroin.
At the defendant's arraignment on April 6, 2013, the People moved orally to amend the complaint to change the name of the informant in the complaint from Police Officer Coffey to Police Officer Gridley. Over the defendant's objection, the application to amend was granted by the court, which noted that the discrepancy was “clearly a typographical error” (Defendant's Exhibit A at 5). The People did not move to amend the complaint as to the time of the offense, which differs between 8:13 p.m. and 12:45 p.m. in the complaint and supporting deposition. The matter was adjourned to April 15, 2013.
On April 15, 2013, the People consented to a Mapp/Dunaway hearing and the matter was adjourned to June 10, 2013 for Open File Discovery. On June 10, 2013, the People filed and served Open File Discovery and announced ready. The matter was adjourned to August 7, 2013 for hearings. Thereafter, on July 23, 2013, the defendant filed the instant motion off-calendar.
The defendant, however, failed to appear for his next court appearance on August 7, 2013, and a bench warrant for his arrest was ordered and bail was forfeited. The defendant returned to court on August 16, 2013, and the matter was adjourned to September 30, 2013 for People's response and for decision on the defendant's motion.
On September 30, 2013, the defendant again failed to appear, and a bench warrant was again ordered for his arrest. The matter was marked off the court's calendar until April 17, 2014, when the defendant was involuntarily returned on the warrant. The matter was eventually adjourned to June 16, 2014 for decision on the instant motion.
The defendant argues that the criminal court complaint must be dismissed on two separate grounds. As a preliminary matter, the defendant contends that the court was without authority to permit the amendment of the accusatory instrument to correct the name of the arresting officer. Second, the defendant argues that even if the amendment was proper, in light of the discrepancies between the original complaint and the supporting deposition, the complaint was improperly deemed an information, and that since more than ninety (90) days have elapsed since his arraignment, the Criminal Court complaint must be dismissed pursuant to CPL § 30.30 as well as the constitutions of the United States of America and the State of New York. The People counter that the amendment did not purport to cure an otherwise facially insufficient accusatory instrument, but rather corrected a mere clerical error. Moreover, the People argue that any discrepancies as to the time of the offense, while “relevant factors for trial”, are irrelevant to the facial sufficiency and conversion of the accusatory instrument.
I. The Court Properly Amended the Complaint Pursuant to CPL § 170.35(1)(a)
Contrary to the defendant's argument, the court had the authority to amend the factual portion of the criminal court complaint or information pursuant to CPL § 170.35(1)(a). The amendment of informations is in fact governed by two separate sections of the Criminal Procedure Law, depending on the portion of the complaint the People seek to amend. Pursuant to CPL § 100.45(3), the court may, on motion of the People and with notice to the defendant, amend the accusatory part of an information to add a count charging any offense supported by the factual portion and any annexed supporting depositions. With respect to the factual portion of a complaint, CPL § 170.35(1)(a) provides that a facially insufficient accusatory instrument “may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend” (emphasis added; see also MacFawn v. Kresler, 88 N.Y.2d 859, 860 [1996] [“the People were, at liberty to amend the information to correct the deficiency but did not”]; People v. Alejandro 70 N.Y.2d 133, 140 [1987] [Bellacosa, J., concurring] [“the State can easily and promptly amend or supersede and pursue a proper prosecution on a jurisdictionally valid accusatory instrument”] ).
Notably, the provisions of CPL § 170.35(1)(a) are only triggered when an accusatory instrument does not conform to CPL § 100.40, which requires that the factual part of the information and any supporting depositions contain factual allegations which establish each element of the charged offense and the defendant's commission thereof. Accordingly, amendments made pursuant to CPL § 170.35(1)(a) will generally correct some defect in the factual portion of the accusatory instrument, while amendments made pursuant to CPL § 100.45(3) conform the accusatory portion to the facts alleged.
Although the People may cure factual defects by amendment, a complaint or information may only be amended as to matters of form which do not change the theory of the prosecution (see People v. Easton, 307 N.Y. 336, 339 [1954];People v. Kurtz, 175 Misc.2d 980 [Crim Ct, Queens County 1998] [amendment as to number of phone calls and date of offense was proper]; People v. Smith, 141 Misc.2d 578 [Crim Ct, Kings County 1988] [amendment as to name of complaining witness was proper] ). On the other hand, the People may not amend an information to add facts or elements not alleged in the original complaint (see People v. Caravousanos, 2 Misc.3d 7 [App Term 9th & 10th Jud. Dists.2003] [court lacked authority to amend factual portion of information include deed and certificate of occupancy] ). Moreover, an amendment can only be made where “no demonstrable prejudice [will] accrue to the defendant's case”, and if such an amendment is made, the defendant is entitled to any necessary adjournments to prepare his defense (Kurtz, supra at 987). Indeed, so long as no prejudice to the defendant will ensue, where the change sought by the People “could have been effected by the preparation of a new information”, there is “neither reason nor necessity for another piece of paper” (Easton, supra at 338).
Here, the defendant's argument that the People may not amend the factual portion of an information stems from an overly expansive reading of the holding in People v. Warren (17 Misc.3d 27 [App Term 2d, 11th, & 13th Jud. Dists.2007] ). In Warren, the People moved at trial, after the victim had testified, to amend the information to conform to the victim's testimony as to the time of the alleged offense. Reversing the conviction, the Appellate Term held that since the amendment “did not involve the addition of a count charging an offense and it was not made prior to trial,” the court lacked the authority to amend the information pursuant to CPL § 100.45(3) (Warren, 17 Misc.3d at 28). Moreover, since the error corrected “was not a mere technicality”, and the defendant, “had he known of the correct time of the offense, he might have been able to pursue an alibi defense”, the court lacked the authority to amend the information pursuant to CPL § 170.35(1) (Id . at 29). The predominant obstacle to the People's amendment in Warren was therefore the surprise to the defendant, as noted by the Appellate Term (see Id. [“had he known of the correct time of the offense, he might have been able to pursue an alibi defense”] ).
Moreover, People v. Hall (4 Misc.3d 60 [App Term 9th & 10th Jud. Dists.2004] and People v. Caravousanos (2 Misc.3d 7 [App Term 9th & 10th Jud. Dists.2003] ), which were relied upon by the Warren court, do not prohibit the amendment of accusatory instruments as the defendant suggests. In both Hall and Caravousanos, the People filed accusatory instruments alleging, upon the personal knowledge of the building inspectors, that the defendants were maintaining illegal apartments in violation of their certificates of occupancy. The People later sought to amend the accusatory instruments by annexing copies of the relevant deeds and certificates of occupancy to establish the elements of ownership and nonconforming use, respectively. The Appellate Term held that these amendments to the factual portions of the accusatory instruments were outside the court's amendment authority pursuant to CPL § 100.45. Neither panel addressed the permissible scope of technical amendments pursuant to CPL § 170.35(1), because in each case, the additional documents were not offered to cure mere technicalities, but rather to establish substantive elements of the charged offenses. Accordingly, it cannot be said that the holdings of Warren, Hall or Caravousanos prohibit the amendment of complaints and informations as to clerical or typographical errors, as contemplated by the Court of Appeals (see MacFawn, 88 N.Y.2d 859;Alejandro, 70 N.Y.2d at 140;Easton, 307 N.Y. 336).
Indeed, as recently as 2011, the Appellate Term for the Ninth and Tenth Judicial Districts has upheld the amendment of a simplified traffic information pursuant to CPL § 170.35 to correct an erroneously named defendant where it did “not change the theory of the case and [did] not surprise or prejudice” the defendant (People v. Iqbal, 31 Misc.3d 94 [App Term 9th & 10th Jud. Dists.2011] ; see also
By contrast, the April 6, 2013 amendment related only to the name of the informant officer. It did not change or effect the factual allegations in the complaint necessary to establish a prima facie case, i.e. that the defendant possessed a controlled substance, namely heroin, and that such possession was knowing and unlawful (see People v. Sierra, 45 N.Y.2d 56, 60 [1978] ). Since the identity of the eyewitness is not an element of the charged offense, the April 6, 2013 amendment did not change the theory of the People's case, that the defendant knowingly and unlawfully possessed heroin, the April 6, 2013 amendment of the Criminal Court complaint was proper (see People v. Santos, 21 Misc.3d 360, 371 [Sup Ct, Nassau County 2008] [amending indictment to change complainant's name did not change theory of the case or prejudice defendant] ).
To the extent that the defendant alleges he was prejudiced by the amendment, the court further finds that no prejudice could have occurred under these circumstances, since it was made at the defendant's arraignment. The defendant had prompt—indeed, immediate—notice from the very outset of the proceeding against him of the correct identity of the named complainant. Moreover, the supporting deposition of Police Officer Gridley makes out each element of the charged offense and includes the time and place of occurrence; but for the absence of an accusatory portion, the supporting deposition would itself constitute a facially sufficient information. Under these circumstances, there was “neither reason nor necessity for another piece of paper”, and the amendment of the information was proper pursuant to CPL § 170.35(1) ( Easton, 307 N.Y. at 338). Accordingly, the branch of the defendant's motion seeking dismissal of the information as improperly amended is denied.
II. The Accusatory Instrument is Facially Sufficient
A facially sufficient local criminal court information must, when read together with any supporting depositions, provide reasonable cause to believe the defendant committed the offense charged, supported by non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL §§ 100.15 [3 ] & 100.40[1]; see People v. Alejandro, 70 N.Y.2d 133;People v. Dumas, 68 N.Y.2d 729 [1986] ). This requirement, unique to informations among accusatory instruments under the Criminal Procedure Law, serves a function analogous to that of the grand jury, requiring the People to lay bare their prima facie case before trial (see Alejandro, supra at 138). Reasonable cause to believe that the defendant committed the charged offense exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience
that it is reasonably likely that such offense was committed and that such person committed it” (CPL § 70.10[2] ).
Though the requirement of non-hearsay allegations is a “much more demanding standard” than reasonable cause alone, it is nonetheless a much lower threshold than proof beyond a reasonable doubt (Alejandro, supra at 138 [internal quotations ommitted]; see also People v. Henderson, 92 N.Y.2d 677;People v. Allen, 92 N.Y.2d 378, 385 [“although the factual allegations in the accusatory instruments could be described as bare boned' (a)t the pleading stage, nothing more is required” ] ). Where the factual allegations contained in an information “give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360). Ultimately, “a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v. Dreyden, 28 Misc.3d 5, 7 [App Term 2d, 11th, and 13th Jud. Dists.2010] [quoting People v. Bello, 92 N.Y.2d 523 (1998) ] ).
A facially insufficient accusatory instrument is a fatal, non-waivable jurisdictional defect, mandating dismissal of the proceeding against the defendant (see People v. Casey, 95 N.Y.2d 354 [2000] ). However, where the defect is “readily curable”, the proper remedy is not dismissal, but amendment or supplementation with a valid supporting deposition, provided the People have not exceeded the time allotted under CPL § 30.30(Id. at 361;see CPL § 170.35[1][a] ; People v. Cobb, 2 Misc.3d 237 [Crim Ct, Queens County 2003] [dismissal improper where People still had time remaining to cure hearsay pleading defects]; People v. Ebramha, 157 Misc.2d 217 [Crim Ct, N.Y. County 1992] ).
Pursuant to PL § 220.03, a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he “knowingly and unlawfully possesses a controlled substance” defined in Public Health Law § 336, except for marihuana. A complaint sufficiently pleads a violation of this section when it:
“adequately identifies the particular drug, alleges that the accused possessed that illegal substance, states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.” (People v. Kalin, 12 NY3d 225, 231–32 [2009] ).
Accordingly, a laboratory report or field test of the alleged controlled substance is not required for pleading purposes (see Id . at 231; People v. Pearson, 78 AD3d 445 [1st Dept 2010] ; People v. Bracy, 31 Misc.3d 130[A] [App Term 2d, 11th, & 13th Jud. Dists.2011] ). Physical possession of a controlled substance is generally sufficient to infer “that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises” (People v. Reisman, 29 N.Y.2d 278, 285 [1971] ). Moreover, possession of a controlled substance “is a crime per se and hence the conscious possession of it, if unexplained or falsely explained, permits the inference that the possession is unlawful” (People v. Sierra, 45 N.Y.2d at 62).
In the instant case, the complaint alleges, and Police Officer Gridley's supporting deposition corroborates, that the defendant possessed three (3) blue envelopes in his right pants key pocket, which, based upon his training and experience, Police Officer Gridley knew to be heroin. These facts are sufficient to allege that the defendant physically possessed heroin, from which a reasonable finder of fact could infer that such possession was both knowing and unlawful.
The defendant's contention that the discrepancy between the complaint and the supporting deposition as to the alleged time of the offense renders the information facially insufficient is unpersuasive. A facially sufficient information, when read together with its supporting depositions, need only “provide reasonable cause to believe that the defendant committed the offense charged,” and establish, through non-hearsay allegations, “every element of the offense charged and the defendant's commission thereof” (CPL § 100.40[1] [b], [c] ). Nor does CPL § 100.20 “require that a supporting deposition contain the same facts” as the accusatory instrument, so long as both, when read together, establish each element of the charged offense (People v. Modica, 187 Misc.2d 635, 637 [Crim Ct, Richmond County 2001] ). Accordingly, variations between an accusatory instrument and any supporting deposition are not fatal when the People have established a prima facie case, but are rather questions of fact and credibility to be considered at trial (see People v. D'Andrea, 35 Misc.3d 1223[A] [Crim Ct Richmond County 2012] [where complaint alleged time of offense as 10:10 p.m., but supporting deposition alleged time of offense as 10:10 a.m., complaint was nonetheless facially sufficient]; People v. Ochoa, 23 Misc.3d 1102(A) [Crim Ct N.Y. County 2009] [discrepancy between complaint and supporting deposition as to location within car of recovered marihuana did not affect facial sufficiency of instrument] ).
It is well settled that “except where time is a material ingredient of the crime the prosecution is not confined in its evidence to the precise date laid in the indictment, but may prove that the offense was committed at any time prior to the commencement of the prosecution” (People v. Cunningham, 48 N.Y.2d 938, 940 [1979] ). As the time of the offense is not an element of Criminal Possession of a Controlled Substance in the Seventh Degree (see Sierra, 45 N.Y.2d at 60;Kalin, 12 NY3d at 231–32), any discrepancy between the accusatory instrument and its supporting deposition as to the alleged time of occurrence does not render the instrument facially insufficient. To the extent the defendant argues that this discrepancy is prejudicial to his ability to mount a defense, the court also finds this argument unpersuasive. The defendant has been on notice since the inception of the case as to the time of the offense alleged, enabling him to prepare a defense. Accordingly, the branch of the defendant's motion seeking dismissal the information as facially insufficient is denied.
III. The People Have Not Exceeded Their Speedy Trial Time
In the alternative, the defendant argues that even if the amendment was proper, the People could not have answered ready for trial in the absence of a laboratory report confirming that the substance recovered was, in fact, heroin. This contention runs afoul of the well-established principle, set forth in People v. Kalin (12 NY3d 225, 231–32 [2009] ) and its progeny, that a laboratory report or field test of an alleged controlled substance is not required for pleading purposes. Nevertheless, the court will engage in a full CPL § 30.30 analysis to determine if any post-readiness delay is chargeable to the People.
The defendant was arraigned on April 6, 2013. After the Criminal Court complaint was amended, the court deemed the complaint an information and the People announced ready. The matter was then adjourned to April 15, 2013. As discussed above, since the amendment of the complaint was proper, and the People did not need a laboratory report, the People announced ready at the defendant's arraignment in satisfaction of their obligations under CPL § 30.30. Therefore, this adjournment is excludable (see People v. Giordano, 56 N.Y.2d 524, 525 [1982] ).
On April 15, 2013, the People consented to a Mapp/Dunaway hearing and the matter was adjourned to June 10, 2013 for Open File Discovery on consent of both parties. Since the matter was adjourned for discovery on consent, this adjournment is excludable (see CPL § 30.30[4][a] ; People v. Caussade, 162 A.D.2d 4, 9 [2d Dept 1990] ).
On June 10, 2013, the People served and filed Open File Discovery and maintained their readiness. The matter was adjourned to August 7, 2013 for hearings. Since the People satisfied their obligation under the statute, this adjournment is excludable (see Giordano, supra at 525). The defendant filed the instant motion off-calendar on July 23, 2013.
On August 7, 2013, the defendant failed to appear, a warrant was ordered, and the matter was marked off the court's calendar. On August 16, 2013, the defendant returned to court, the warrant was vacated, and the defendant's bail reinstated. This period of delay due to the defendant's absence is excludable (CPL § 30.30[4][c] ; see also People v. Mapp, 308 A.D.2d 463 [2d Dept 2003] [citing People v. Howard, 182 Misc.2d 549 (Sup Ct N.Y. County 1999) ] ). Since the defendant had filed this motion in the interim, he matter was adjourned to September 30, 2013 for decision on the instant motion. This period of delay due to the defendant's absence and pre-trial motion to dismiss is excludable (CPL § 30.30[4][a] ; see also People v. Brown, 99 N.Y.2d 488, 492 [2003] ).
On September 30, 2013, the defendant again failed to appear. A bench warrant was ordered for the defendant's arrest and the defendant's bail was forfeited. The matter was again marked off the court's calendar.
Thereafter, on April 17, 2014, the defendant was involuntarily returned on the warrant, having been incarcerated in Suffolk County. Since the record is devoid of any allegation that the defendant's incarceration in another jurisdiction was brought to the People's attention, this period of delay due to the defendant's absence is excludable (CPL § 30.30[4][c] ; see also People v. Mapp, supra [where defendant fails to appear, People need only exercise due diligence in attempting to produce him where they have actual knowledge of his whereabouts] ). The matter was adjourned eight (8) days to April 25, 2014 for decision on the instant motion. This period of delay occasioned by the defendant's pre-trial motion to dismiss is excludable (CPL § 30.30[4][a] ; Brown, supra at 492).
On April 25, 2014, the matter was adjourned to June 16, 2014 for further consideration and decision on the instant motion. This period of delay occasioned by the defendant's pre-trial motion to dismiss is excludable (CPL § 30.30[4][a] ; Brown, supra at 492). Accordingly, since a total of zero (0) days are chargeable to the People, the branch of the defendant's motion seeking dismissal pursuant to CPL § 30.30 is denied.
IV. The Defendant Was Not Denied His Constitutional Right to a Speedy Trial
Finally, the defendant argues that he was denied his right to a speedy trial under the constitutions of the United States of America and New York State, and seeks dismissal on these grounds. It is important to note from the outset that as of the date of this court's decision, the defendant's case has been pending for just over fourteen (14) months, but more importantly, the case had been pending for just over three (3) months at the time the defendant filed the instant motion on July 23, 2013.
Whether a defendant has been denied a “speedy trial must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed” (People v. Romeo, 12 NY3d 51, 55 [2009] ). The five factors to be considered by the court are “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense” (People v. Taranovich, 37 N.Y.2d 442, 445 [1975] ). No one factor is dispositive, and the court “must engage in a sensitive weighing process of the diversified factors in the particular case” (People v. Vernace, 96 N.Y.2d 886, 887 [2001] ).
As explained above in the court's CPL § 30.30 analysis, the People have not meaningfully contributed to the delays in this case. In fact, nearly all of the delays to date have been occasioned by the defendant's repeated failure to appear, his re-arrest in Suffolk County, and pre-trial motion practice. Moreover, the defendant has been at liberty on bail or bond throughout the pendency of this case. Finally, given the strict liability nature of the possessory offense charged, it cannot be said that his ability to present defense has been meaningfully prejudiced by the delay (see e.g. People v. McCorkle, 67 AD3d 1249, 1250 [3d Dept 2009] [10 month delay caused in part by consent adjournments did not violate constitutional right to speedy trial]; People v. Polite, 16 Misc.3d 18, 19 [App Term 1 Dept 2007] [18 month delay caused by defendant's motion practice and court congestion did not violate constitutional right to speedy trial where defendant was at liberty throughout proceedings] ). Accordingly, that branch of the defendant's motion seeking dismissal on constitutional speedy trial grounds is denied.
The remainder of the defendant's motion is decided as follows:
The defendant's motion to preclude unnoticed statements made to law enforcement and evidence of unnoticed police-arranged out-of-court identifications is granted, absent good cause shown before the trial court (CPL § 710.30[1][a] & [b]; see also People v. Lopez, 84 N.Y.2d 425 [1994] ).
The People are reminded of their continuing obligations pursuant to Brady v. Maryland (373 U.S. 83 [1963] ).
The defendant's motion for a reservation of rights is granted to the extent permitted under CPL § 255.20.
This is the decision and order of the Court.
People v. Matos, 32 Misc.3d 136[A] [App Term 9th & 10th Jud. Dists.2011] ).