People v. Gentile

Full title: People of the State of New York v. Giuseppe Gentile, Defendant.

Court: City Court of Albany

Date published: Nov 1, 2011

2011 N.Y. Slip Op. 51956 (N.Y. 2011)

Opinion

03-139023

11-01-2011

People of the State of New York v. Giuseppe Gentile, Defendant.

Melinda B. Seiden, Esq. Assistant District Attorney P. David Soares, Esq. Albany County District Attorney Albany City Court - Criminal Part Melvin T. Higgins, Esq. Attorney for Defendant

Rachel L. Kretser

Melinda B. Seiden, Esq.

Assistant District Attorney

P. David Soares, Esq.

Albany County District Attorney

Albany City Court - Criminal Part

Melvin T. Higgins, Esq.

Attorney for Defendant

, J.

Defendant, Giuseppe Gentile, is charged with identity theft in the second degree, a Class E felony, in violation of Penal Law §190.79. Defendant moves, by motion dated August 30, 2011, through his attorney Melvin T. Higgins, Esq., to dismiss the within accusatory instrument. The People have not responded. The matter now comes before the Court for a decision.

Motion to Dismiss - CPL §30.30

Defendant moves for an order dismissing the within felony complaint, pursuant to CPL §30.30. Defendant was arraigned on March 10, 2003. Therefore, this action was commenced on March 10, 2003. Defendant waived the action to the Grand Jury. The People requested the case be returned to Albany City Court for consideration pursuant to CPL §180.40 and County Court Judge Thomas A. Breslin granted such request on March 21, 2003. Defendant was scheduled to appear for arraignment in Albany City Court on April 30, 2003. However, defendant did not appear and a bench warrant was issued on May 5, 2003. It has been over eight (8) years since this matter has been on the Court's calendar. There is no record of the People ever filing a prosecutor's information reducing the charge to a misdemeanor. The only charge currently pending against defendant is identity theft in the second degree, a class E felony. Therefore, defendant's motion is denied based on the Court's lack of jurisdiction.

Reduction of Felony Charges - CPL §180.50

In order to reduce a felony charge, following an inquiry into whether the facts underlying the offense merit a charge other than a felony, there must be a subsequent filing of a local accusatory instrument once the felony has been converted or replaced. CPL §180.50(1)-(3). CPL §180.50(3) reads as follows:

A charge is reduced' from a felony to a non-felony offense, within the meaning of this section, by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument, as follows: (a) If the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may: (i) Direct the district attorney to file with the court a prosecutor's information charging the defendant with such non-felony offense; or (ii) Request the complainant of the felony complaint to file with the court an information charging the defendant with such non-felony offense. If such an information is filed, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompanying the replacing information; or (iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged. In case of such conversion, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompany the information to which it has been converted...

The filing of the new accusatory instrument in the lower court, pursuant to CPL §180.50(3)(d), is the jurisdictional predicate for that court to hear the case. In People v. Dion, 93 NY2d 893, 894, 689 NYS2d 685, 686 (1999), the Court of Appeals stated that "no reduction was accomplished because the court did not conform to the requirements of CPL §180.50." See also People v. Yolles, 92 NY2d 960, 961, 683 NYS2d 160, 161 (1998). Here, there was no such filing as required by CPL §180.50(3)(i)-(iii), so the felony complaint was never reduced. Therefore, the Court has no jurisdiction to grant defendant's CPL §30.30 motion.

Termination of Prosectution - CPL §180.85

Under CPL §180.85, either party (or the court sua sponte) may move for an order terminating prosecution of the charges contained in a felony complaint, on consent of the parties. CPL §180.85(1) and (2). This section was enacted in order to dispose of stale felony cases. Here, the prosecution has failed to pursue their case against defendant, although more than eight years has elapsed since the case was returned to Albany City Court. Pursuant to CPL §180.85, the parties have 30 days to oppose or consent to termination of this action. CPL §180.85(2).

Other Motions

All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court. The matter is adjourned to December 1, 2011 at 10:00 a.m. for submissions on the CPL §180.85 motion to terminate prosecution.

ENTER.SO ORDERED.

This 1st day of November, 2011

___________________________________

Albany, New YorkRachel L. Kretser

Albany City Court Judge