Opinion
CR-1371-19
02-07-2020
The PEOPLE of the State of New York, v. Chioke O. JEFFERSON, Defendant.
Jason Richland, Esq., Sr. Assistant Public Defende, Dutchess County Public Defender's Office, Attorney for the defendant, 45 Market Street, Poughkeepsie, NY 12601 Miriam Citro, Esq., Assistant District Attorney, Dutchess County District Attorney's Office, 236 Main Street, Poughkeepsie, NY 12601
Jason Richland, Esq., Sr. Assistant Public Defende, Dutchess County Public Defender's Office, Attorney for the defendant, 45 Market Street, Poughkeepsie, NY 12601
Miriam Citro, Esq., Assistant District Attorney, Dutchess County District Attorney's Office, 236 Main Street, Poughkeepsie, NY 12601
Scott L. Volkman, J. 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, dated July 26, 2019, on the grounds that defendant's re-arrest on new charges is insufficient, as a matter of law, to form the basis of a violation pursuant to C.P.L. § 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:
Defendant's motion seeks to dismiss the declaration of delinquency, but the paper filed is a "Declaration of Delinquency and Notice to Appear" on the declaration of delinquency.
FACTS & ARGUMENTS
On March 10, 2019, defendant was arrested under the instant docket (CR-1371-19) for six (6) 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, 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 pled guilty to criminal 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 $250.00 fine . Thereafter, defendant violated the conditions of his sentence when he failed to pay his fine , and was rearrested on May 22, 2019 (under docket number 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 C.P.L. § 210.40 and People v. Clayton , 41 A.D.2d 204, 342 N.Y.S.2d 106 (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.
In addition to a $175.000 surcharge and $25.00 crime victim fee.
Defendant failed to appear and pay his fine on 5/20/19, at which time the court issued a bench warrant. Defendant was returned on the warrant on 5/23/19, and failed to pay his fine on: 6/6/19; 6/20/19; 7/10/19; 7/12/19; 7/26/19; 8/9/19; 8/23/19; 9/6/19. After defendant was arraigned on a declaration of delinquency defendant paid his fine on 9/13/19.
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LEGAL ANALYSIS AND CONCLUSION
The declaration of delinquency and notice of appearance at issue is based upon defendant's re-arrest 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 A.D.2d 841, 475 N.Y.S.2d 504 (2d Dept. 1984) citing People v. Amaro , 79 Misc. 2d 499, 500, 358 N.Y.S.2d 900 (New York 1974) to dismiss the DOD based upon the proposition that a re-arrest for a new offense is legally insufficient to support the filing of the instant declaration of delinquency is without merit. 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 , P.L. 65.15(2) . (Peter Preiser, 2005 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 allege 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 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 N.Y.2d 957, 958, 516 N.Y.S.2d 641, 509 N.E.2d 336 (1987) ; People v. Wong , 180 Misc. 2d 749, 692 N.Y.S.2d 904 (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, supra , and People v. Amaro, supra , the reported cases predominantly revolve around violations of probation.
Nonetheless, defendant relies upon People v. Diaz, supra , 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 re-arrested, but he was formally charged, arraigned, 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 of in the declaration of delinquency and specifications. See People v. Davis , 161 Misc. 2d 533, 615 N.Y.S.2d 252 (Queens County 1994).
Defendant Diaz had pled guilty to robbery in the third degree and was sentenced to five (5) years of probation. Defendant absconded and committed a series of crimes, failed to report to his probation officer, failed to appear before the court in connection with several new arrests and bench warrants. Probation recommended that the defendant be declared delinquent and the court "so ordered" the DOD, issuing a bench warrant for the DOD. Defendant's whereabouts remained unknown for more than two (2) 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, 358 N.Y.S.2d 900, quoting from C.P.L. § 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 C.P.L. § 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 A.D.2d 972, 390 N.Y.S.2d 664 ). Para. P. v. Diaz , supra at 842-843, 475 N.Y.S.2d 504 .
Importantly, the "so ordered" bench warrant issued on the declaration of delinquency in People v. Diaz, supra , 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, supra . As such, defense counsel's reliance upon People v. Diaz, supra 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, 358 N.Y.S.2d 900 (New York 1974) as rationale for its holding. In People v. Amaro , the Court denied an ex parte application that the defendant be declared delinquent 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." Penal Law §§ 65.00 (2)(3) ; C.P.L. 120.20 (3) ; C.P.L. 410.10, 410.30, 410.40. People v. Amaro, supra . "If the probationer fails to respond to the notice, such omission may constitute a violation of the conditions of his probation." Id. at 902-903.
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 November 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 re-arrested, he had been formally charged with a crime.
It is of importance to note that the cases that follow People v. Diaz, supra 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 re-arrest, 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, 615 N.Y.S.2d 252 (Queens 1994) ; People v. Horvath , 37 A.D.3d 33, 825 N.Y.S.2d 757 (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 without explanation, a motion to dismiss the DOD is proper); People v. Cook , 295 A.D.2d 622, 745 N.Y.S.2d 182 (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 A.D.2d 502, 740 N.Y.S.2d 111 (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 A.D.2d 247, 652 N.Y.S.2d 275 (1st Dept. 1997) (postponements of hearing, without defendant's consent, on a violation of probation deprived court of jurisdiction); People v. Johnson , 173 A.D.3d 1446, 104 N.Y.S.3d 380 (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 C.P.L. § 410.10(2) ]; People v. Finch , 160 A.D.3d 1212, 1213, 75 N.Y.S.3d 642 (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, 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 A.D.2d 841, 475 N.Y.S.2d 504 (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 re-arrest can be used as a basis for filing a DOD [ People v. Conway , 263 A.D.2d 548, 695 N.Y.S.2d 137 (3d Dept. 1999) ], especially here, where a criminal charge was filed with the Court, 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 of in the declaration of delinquency and specifications. See , People v. Davis, supra.
THEREFORE, based upon all of the foregoing, it is hereby
ORDERED , that the defendant's motion to dismiss the Declaration of Delinquency and Notice of Appearance as facially insufficient is DENIED .