Opinion
01737C-2007.
Decided January 6, 2009.
Brian J. Sullivan, Bronx, New York, for Defendant.
Allison Kohlman, Office of the District Attorney, Bronx County, Bronx, New York, for the People.
The defendant has asked this Court to reconsider its decision denying his application to dismiss his case for an alleged violation of his rights under CPL § 30.30. In his initial motion, as well as in the current motion to renew, he asks this Court to examine information available to the People at the time they drafted a felony complaint charging him with felony gun possession. The defendant was arraigned on the felony complaint, but 61 days later, the People moved to dismiss the felony gun charge and prosecute him for possession of the same gun, but as a misdemeanor. The defendant alleges that the People had information that he possessed the gun at his "place of business" when they drafted the felony complaint, and therefore he claims that their initial decision to prosecute him for a felony was made in bad faith. Thus, he argues that the amount of time in which the People have to state ready for trial in this case should be 90 days, calculated from the time of his initial arraignment on the felony complaint, and not 90 days calculated from the date the case was reduced to a misdemeanor. The defendant's novel argument appears to be one of first impression. The defendant's motion is denied.
The defendant was arrested on November 11, 2006 and given a desk appearance ticket (DAT) in which the charges listed included only misdemeanors. The People drafted a felony complaint, and the defendant was arraigned on that complaint on January 9, 2007, which charged him, inter alia, with a violation of Penal Law § 265.03(3), Criminal Possession of a Weapon in the Second Degree, an armed felony offense. In order to convict the defendant of that crime, the People would be required to prove he unlawfully possessed a loaded and operable firearm, and that such possession did not take place in his "home or place of business." See People v. Rodriguez, 68 NY2d 674 (1986). He was also charged in the same felony complaint with violating Penal Law § 265.01(1), Criminal Possession of a Weapon in the Fourth Degree, and New York City Administrative Code § 10-131(i)(3), Possession of Ammunition, both misdemeanor charges. In this case, only one weapon is alleged to have been possessed by the defendant, a 9mm semi-automatic Glock firearm, and he is alleged to have carried that gun, along with 46 rounds of ammunition, concealed on his person in a shoulder holster. He was arrested while inside the Crazy Horse Club, which the defendant states is a "strip club" located in Bronx County. At the time of the arraignment, the People served notice pursuant to CPL § 190.50(5)(a) that they intended to present the case to a grand jury. The defendant served notice that he wished to appear and testify before the grand jury. The defendant was released on his own recognizance, and the case was adjourned to March 12, 2007, for the results of any action by the grand jury.
On March 12, 2007, the People made an application to dismiss the felony charge. The application was granted, and the accusatory instrument was now a misdemeanor complaint, which included the Penal Law § 265.01(1) charge, as well as the New York City Administrative Code § 10-131(i)(3) count. The defendant has not alleged that he took any issue with the dismissal of the felony charge, or that he raised his current argument at the time of the dismissal of the felony count. He filed his initial motion to dismiss the case pursuant to CPL § 30.30 on May 29, 2008. He alleged in that motion that the People should only be permitted a total of 90 days of "speedy trial" time from the date of the initial arraignment on the felony complaint, because he claimed the People had information at the time they drafted the complaint that the defendant possessed the gun inside his "place of business" when he was arrested. The People responded that they did not have sufficient information that the Crazy Horse Club was the defendant's "place of business" when they made their original charging decision. In its decision dated September 5, 2008, this Court applied the 90 day "speedy trial" clock from the date of the defendant's arraignment on the misdemeanor complaint, see CPL § 30.30(5)(c), found that there were a total of 37 days that should be charged to the People, and denied the motion.
The case proceeded to a pretrial suppression hearing on November 24, 2008. Following the arresting officer's testimony, defense counsel insisted to the hearing judge that previously unknown information was uncovered that was relevant to this Court's prior CPL § 30.30 decision, and a schedule was set for what the defendant stated would be a motion to renew. In his current motion papers, the defendant purports to rely on the hearing testimony of Detective Jesus Capo, a member of the Vice Enforcement Squad, police reports prepared by Detective Capo on November 11, 2006, the date of the defendant's arrest, and a fact summary, based upon information provided by Detective Capo, written by a member of the District Attorney's Office prior to the drafting and docketing of the felony complaint in January 2008, to renew his claim that the police department and the People knew that the defendant was employed at the Crazy Horse Club on the night of his arrest, and that the case should be dismissed pursuant to CPL § 30.30. The People argue that the motion to renew is improperly made, because the information the defendant relies on was all contained in the discovery material turned over to the defense before the initial motion to dismiss was made. CPLR 2221 provides that a motion to renew "shall be based upon facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion." Here, the information that the defendant presents to the Court was all contained in the DAT paperwork provided to the defendant prior to his making the initial motion to dismiss. In this case, despite the fact that the defendant was found to be in possession of a loaded, operable and powerful semi-automatic handgun along with a mini-arsenal of ammunition, he was given a Desk Appearance Ticket. The Desk Appearance Ticket Investigation Report and other documents note that the defendant's "business address" was 4319 Boston Road, which is the location of the Crazy Horse Club. Moreover, to the extent that the "DA Case Summary," which was disclosed just prior to the hearing, contains a notation that defendant "was working as a security guard inside the club" at the time of the arrest, that information cannot be considered to have been newly discovered by the defendant since it is based on the defendant's own statements to the detective. Thus, even though some sources of the information relied upon by the defense are more clearly spelled out in the motion to renew, the substance of the information is exactly the same as the defendant possessed when he made his initial motion to dismiss. For this reason, the motion to renew is denied as improperly made.
To the extent that the defendant's motion can be construed as one to reargue, the Court grants reargument. Upon reargument, the Court finds no basis for it to disturb its prior ruling. The Court has always been aware that the defendant claimed that the Crazy Horse Club was his "place of business." And, this Court has always been aware that the source of this information was based in part on statements made by the defendant that he worked there. And, there has never been a serious dispute that the People were aware of the information imported to the police by the defendant when they charged him with the felony. At bottom the defendant is asking the Court to rule that, as a matter of law, he should never have been charged with felony gun possession because he worked at the Crazy Horse Club, that the People knew this information when they brought felony charges, and that his CPL § 30.30 rights have been prejudiced as a result.
The defense argument is a novel one in the realm of CPL§ 30.30 litigation. In seeking dismissal of a case under CPL § 30.30, it is usually up to the defendant to make a prima facie showing that the People were not ready for trial within the statutory time allotted. See People v. Lomax, 50 NY2d 351, 357 (1980). In this case, under well-established case law, the defendant failed to make any such showing, since he as much as concedes that the People are within the statutory time allotted to them to state ready for trial in the manner in which the case has been prosecuted. . . . commencing as a felony prosecution, and then reducing the felony charge to a misdemeanor less than 90 days after the arraignment on the felony complaint. Thus, under normal CPL § 30.30 analysis, the motion has to be denied. See People v. Lusky, 245 AD2d 1110 (4th Dept. 1997).
But, he argues that the felony charge was unfounded at its inception, and that the People knew this to be the case, and therefore the statutory time available to the People to state ready should not be governed by the fact that he was arraigned on a felony complaint. This argument itself is well outside the ambit of CPL§ 30.30 litigation. The type of ruling that the defendant seeks would require a whole new approach to CPL § 30.30 jurisprudence, and one not even remotely contemplated by the legislature in drafting that statute. In this Court's opinion, the relief requested has no basis to be granted under CPL§ 30.30 for a number of reasons.
First, there is sound legal authority suggesting that a court should not even entertain a motion to dismiss pursuant to CPL§ 30.30 on the ground alleged by this defendant. It is well-established the prosecutor is vested "with broad discretion to decide what crimes to charge." People v. Urbaez , 10 NY3d 773, 775 (2008). As such, courts are usually not in a position to examine the decision made by a prosecutor to commence an action charging a specific crime. See People v. Eboli, 34 NY2d 281, 288-89 (1974). The types of applications addressed to the charges brought by a prosecutor which a defendant may make are spelled out quite specifically in the Criminal Procedure Law. For example, a defendant can challenge the facial sufficiency of an information in a case being prosecuted by that type of accusatory instrument, and if that motion is successful, the charges can be dismissed. CPL§§ 170. 30(1)(a) and 170.35(1)(a); People v. Alejandro, 70 NY2d 133 (1987). If a defendant is indicted, a motion can be made to have the court inspect the grand jury minutes to see if the evidence before the grand jury supports the charges voted. CPL § 210.20(1)(b); See People v. Roman, 149 Misc 2d 971 (Sup.Ct. Bronx County 1991). The closest the legislature has come to creating a statute empowering a court to grant a motion encompassing even a part of the relief requested by the defendant is contained in CPL § 180.50(1). Under that statute, a defendant may make an application requesting that a felony charge contained in a felony complaint be reduced to a non-felony charge and prosecuted as such, and the court is authorized to conduct an inquiry for that purpose. If the court finds that there is no viable felony charge following such an inquiry, it must order that the defendant be prosecuted on a non-felony charge. If it determines that there are both viable felony and non-felony charges, the court may still direct the prosecution to proceed only on non-felony charges, if such decision would be "in the interest of justice." Significantly, the legislature directed that before any such inquiry take place under this statute, the prosecutor must first consent. In other words, a court is powerless to undertake an examination of the People's basis for bringing felony charges in a felony complaint in any other circumstance.
A defendant may challenge the People's decision to charge him or her at all with criminal conduct as "vindictive" or "selective," and in such a case the Court is empowered to look into the motive behind a particular prosecution. See e.g. People v. Bell, 11 Misc 3d 1070A (Sup. Ct. Monroe County 2006). There is no such allegation raised in this case, and even if one were, the decision would not involve a finding as to CPL § 30.30 issues.
In addition, the legislature has never even hinted that it was empowering a court to examine a charging decision made pursuant to a motion to dismiss under CPL § 30.30, and certainly never authorized an inspection of a charging decision with an eye toward altering the time allotted by the legislature for the People to state ready for trial. It has been repeatedly recognized that the legislative scheme of CPL § 30.30 is to be strictly construed and a CPL§ 30.30 analysis into how much time the People have to state ready can only be made with regard to what the legislature specifically indicated. See e.g. People v. Cooper, 98 NY2d 541, 545 — 46 (2002); People v. Tychanski, 78 NY2d 909, 911-12 (1991). In this case, the CPL § 30.30 time is calculated pursuant to CPL § 30.30(1) and CPL § 30.30(5)(c). The defendant was arraigned on a felony complaint, which contained a felony charge, and that charge was subsequently dismissed and the People proceeded to prosecute the defendant based on charges contained in a misdemeanor complaint, which was subsequently converted into an information. Since the felony complaint was replaced by a misdemeanor complaint less than 90 days after the initial arraignment, the People have 90 days to state ready for trial following the dismissal of the felony charge and the arraignment on the misdemeanor complaint. There is no other ruling authorized under CPL § 30.30 in this situation.
Moreover, even in the entirely permissible situation where a defendant challenges the legal sufficiency of the evidence behind a felony charge voted by a grand jury, and the charge is reduced to a misdemeanor, there is nothing in the statute or case law indicating that the People's time to state ready is reduced in any way. Where a defendant is indicted for felony gun possession, and the defendant believes that the evidence before the grand jury was legally insufficient to support the felony charge because the evidence before the grand jury would indicate that the gun was possessed in that defendant's home or place of business, the remedy available to the defense is a motion directed to the court to inspect the grand jury minutes, and either dismiss the indictment or reduce the felony charge to a misdemeanor. See People v. Melville, 19 Misc 3d 1101A (Sup. Court NY County 2008); People v. Roman, 149 Misc 2d at 977 — 78. Once again, that is the sole remedy there is no additional remedy under CPL§ 30.30 that requires the "speedy trial" clock to be reset at 90 days from the date of the defendant's arraignment on the felony complaint if the charge is reduced based on a ruling that the People's evidence was insufficient to establish this element of the crime.
In this case, there was never a grand jury presentation at all. The People did make an application on their own to dismiss the felony charge of Criminal Possession of a Weapon in the Second Degree before the case was presented to a grand jury. No inquiry is required to be conducted by the court in this type of situation before granting the People's application. See People v. Johnson, 5 NY2d 752 (2005). There is nothing in the Criminal Procedure Law, or apparently in any reported case, that would permit a court to make an inquiry into the reasons behind the People's initial decision to charge a defendant with the commission of a felony for the purpose of making a record concerning a defendant's CPL § 30.30 rights at this juncture either. Accordingly, there would be no legal basis for this Court to change the amount of time for the People to state ready in this case to 90 days from the date of his arraignment on the felony complaint, even if they did not have sufficient evidence to prove that the Crazy Horse Club was not the defendant's "place of business." In fact, if a court were to construe CPL § 30.30 in the way advocated by defense counsel, such a ruling would create a constitutional problem involving the separation of powers. The decision about what charges to bring is a function of the executive branch powers of the district attorney's office. See People v. DiFalco, 44 NY2d 482, 486 (1978). CPL § 30.30 should be construed to avoid, and not create, constitutional problems.
Finally, to the extent that the People have chosen to bring information about what they knew about the defendant's purported business relationship with the Crazy Horse Club prior to drafting the felony complaint, even if this Court were empowered to consider the merits of the defendant's motion, there is no reason to find that the People acted in bad faith when they initially decided to prosecute him for felony gun possession. As the People have said, at the time that the charging decision was made they had, at best, conflicting evidence about whether the defendant even worked at the Crazy Horse Club. They have stated in their affirmation in response to this motion that one person, the manager of the club, first told them that the defendant was not an employee, but that they subsequently learned from the owner of the club that he was an employee. And, as they point out, even if he were an employee, there must still be evidence that the defendant, who clearly did not own the club, was given direct authorization by the club owner to carry and use a gun while on the premises in order for the "place of business" exception to even apply, See People v. Francis, 45 AD2d 431 (2nd Dept. 1974), aff'd on other grounds, 38 NY2d 150 (1975); see also People v. Smith, 105 Misc 2d 586 (Sup.Ct. NY County. 1980), and there is nothing in the record to show that he was so authorized. Moreover, as this Court pointed out in its initial decision, the "place of business" exception has not been defined by statute, and has been narrowly construed by the courts. People v. Buckmire, 237 AD2d 151 (1st Dept. 1997); see also People v. Yaghi, 199 AD2d 829 (3rd Dept. 1993). The People allege that where the place of business exception has been found to exist, "most cases speak to a need to protect property. People v. Rondon, 109 Misc 2d 394, 397 — 398. See also People v. McWilliams, 96 Misc 2d 648, 654 (whether or not the weapons could reasonably be considered necessary or authorized to protect persons or property.')." (People's Affirmation in Opposition at Page 3). There is nothing on the record that would be conclusive, one way or another, about the viability of the "place of business" exception in this case.
The Court initially found that the club was being operated in the nature of a social club, and noted that place of business exception would not apply, citing People v. Cook, 174 AD2d 313 (1st Dept. 1991). The defendant now alleges that the Crazy Horse Club would not be considered to be a social club, and the Court accepts that representation.
And, the hearing transcript upon which the defendant asks this Court to rely to establish that the People acted in bad faith in first charging him with felony gun possession is irrelevant to the merits of any CPL § 30.30 claim, since the hearing is not being conducted with an eye toward litigating the defendant's CPL § 30.30 motion. This Court never ordered a hearing to explore the reasons behind the initial charging decision made by the People, and there is nothing in the record to indicate that the hearing court is allowing such an inquiry be made for this purpose. The hearing is being conducted pursuant to a motion to suppress physical evidence and statements, and the hearing was ordered months before the defendant's motion to dismiss pursuant to CPL § 30.30 was ever made, and by a different judge. Although the hearing court judge allowed questioning about statements made by the defendant about where he worked, and cross-examination involving notations made by the detective about those same statements, the People were never placed on any notice by the defendant that he was seeking to expand the scope of the pretrial hearings to conduct an inquiry into the reasons why certain charges were brought and then dismissed in this case. That is beyond the scope of the hearing ordered, and this Court is certainly not now authorizing that the scope of the hearing be expanded for any reasons connected with the defendant's CPL § 30.30 arguments raised before it.
For all the reasons stated herein, the defendant's motion to renew his earlier motion and dismiss the case pursuant to CPL § 30.30 is denied, and the Court adheres to its earlier decision finding that there are no more than 37 days charged to the People pursuant to CPL § 30.30. This constitutes the decision and order of the Court.