Opinion
No. 22809C–2012.
2012-09-10
The PEOPLE of the State of New York, v. Michael RAMSEUR, Defendant.
COLLEEN D. DUFFY, J.
On April 17, 2012, Defendant Michael Ramseur was charged with Criminal Contempt in the Second Degree, PL 215.50(3), arising out of an incident on April 16, 2012. At the arraignment, the People served and filed copies of the Order of Protection issued by the Honorable Patricia Williams, A.S.C.J., on January 24, 2012, valid until January 23, 2014 (the “Order of Protection”), and declared that they were ready for trial.
On July 25, 2012, Defendant filed a motion seeking dismissal of the charge of Criminal Contempt in the Second Degree, PL 215.50(3), on the grounds of legal sufficiency and denial of his right to a speedy trial. Defendant contends that the information is facially insufficient to support the charge of criminal contempt.
On July 27, 2012, Acting Supreme Court Justice Leonard Livote directed the People to respond to Defendant's motion by August 10, 2012. The People did not respond by that date.
On August 10, 2012, the People represented to this Court that Acting Supreme Court Justice Ralph Fabrizio already had decided the issue of the legal sufficiency of the criminal contempt charge on June 14, 2012, and that they had ordered the minutes of that proceeding, but had not yet received them. As the court file did not reflect that Judge Fabrizio had determined this motion, the Court directed the People to respond to Defendant's motion by August 17, 2012, unless the minutes were not provided to the People by that date.
No response was filed by August 17, 2012. On that date, the Court received a letter from Assistant District Attorney Katie Falasca, Esq., requesting an extension of time to respond to the motion on the grounds that the People had not yet received the June 14, 2012 minutes of the proceeding.
On August 20, 2012, the court reporter, Lorna Beckford, informed this Court that she had sent the minutes to the District Attorney's Office on August 16, 2012, or August 17, 2012.
On August 28, 2012, the People submitted an opposition to the motion, along with a request that the Court accept the opposition despite its late filing. No good cause was set forth by the People for filing their response more than ten days after the extended time which had been granted to the People. Moreover, the People's response, filed 18 days after the date Judge Fabrizio originally had ordered them to respond, failed to include the minutes of the June 14, 2012 proceeding and does not indicate that the minutes support their earlier representation to the Court that Judge Fabrizio previously had determined the motion. Although the Court will consider the People's response for the purpose of determining Defendant's motion, the People are charged 18 days of speedy trial time for their delay in filing their opposition.
For the reasons set forth below, Defendant's motion is denied in its entirety.
FACTUAL ALLEGATIONS
In the complaint, Police Officer Joel Roman, Shield No. 021567, has averred that, on or about April 16, 2012, at approximately 10:12 a.m., in front of 1779 Fulton Avenue, Bronx County, he observed Defendant standing next to Earlyn Fernandez. Officer Roman further has averred that this location is the home of Complainant.
In addition, Officer Roman has averred that he reviewed a Supreme Court Order of Protection, issued by the Honorable Judge Patricia Williams on January 24, 2012, and valid until January 23, 2014, which ordered Defendant, in pertinent part, to stay away from Complainant and from her home.
Officer Roman also has averred that Defendant was aware of this Order of Protection in that the order is marked “Defendant advised in court of issuance and contents of order” and “order personally served on Defendant in court.”
CONCLUSIONS OF LAW
Defendant's motion to dismiss the charge of Criminal Contempt in the Second Degree, PL 215.50(3), on the grounds of legal sufficiency and denial of his right to a speedy trial is denied as to both grounds.
1. Facial Sufficiency is a Two–Pronged Test
For the reasons set forth further herein, Defendant's motion to dismiss the charge of Criminal Contempt in the Second Degree, PL 215 .50(3), as legally insufficient is denied.
In determining the question of facial sufficiency, courts must look at the two requirements of CPL § 100.40(1)(c). An accusatory instrument must state facts of an evidentiary nature supported by allegations which, if true, establish every element of the offense and the defendant's commission thereof. CPL § 100.40(1)(c). These facts also must be supported by non-hearsay allegations. Id.
The first requirement—that the factual allegations establish every element of the crime—is jurisdictional and cannot be waived. Casey, 95 N.Y.2d 354, 362, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) (failure to plead element of crime is jurisdictional); People v. Alejandro, 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). The second requirement—that all allegations be non-hearsay—is a procedural, not jurisdictional, requirement and is waived if a defendant fails to challenge the non-hearsay allegations in a timely pre-trial motion. Casey at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233.
As set forth further below, in this case, the factual allegations of the information establish every element of the crime alleged. In addition, Defendant's failure to timely file the motion waived any challenge that the allegations of the complaint may be hearsay. Accordingly, Defendant's motion to dismiss the information as legally insufficient is denied. A. The Information is Facially Sufficient
As noted above, the requirement that there be factual allegations establishing every element of the offense is a non-waivable jurisdictional requirement of a facially sufficient misdemeanor information, which may be raised at any time. People v. Casey, 95 N.Y.2d at 363, 717 N.Y.S.2d 88, 740 N.E.2d 233;People v. Miles, 64 N.Y.2d 731, 485 N.Y.S.2d 747, 475 N.E.2d 118 (1984)(information states the non-waivable jurisdictional predicate for prosecution: crime charged, elements thereof, and that defendant committed it); People v. Pratt, 164 Misc.2d 498, 625 N.Y.S.2d 869 (Crim. Ct., New York Co.1995).
In this case, the factual allegations, if true, establish every element of the offense of criminal contempt and Defendant's commission of that crime. CPL § 100.40(1)(c).
In deciding a motion for legal sufficiency, the court confines its analysis to the allegations contained solely in the complaint and any depositions filed in support of it. See People v. Alejandro, 70 N.Y.2d 133, 138, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); see also People v. Konieczny, 2 NY3d (2004); People v. Voelker, 172 Misc.2d 564, 658 N.Y.S.2d 180 (Crim. Ct, Kings Co.1997). “The court may not consider any extraneous allegations contained in a motion to dismiss or an answer to a motion to dismiss.” Voelker at 569, 658 N.Y.S.2d 180.
The prima facie case requirement for a legally sufficient information is not the same as the burden of proof beyond a reasonable doubt, nor does it rise to the level of legally sufficient evidence necessary to survive a motion to dismiss at the end of the People's case at trial. People v. Kalin, 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009). “So long as the factual allegations of 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.” Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (citations omitted).
To make out a charge of criminal contempt, the “accusatory instrument must allege that a lawful order of the court clearly expressing an unequivocal mandate was in effect, that defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it.” People v. Whidbee, 8 Misc.3d 1023(a) (Crim. Ct., Kings Co.2005); see also People v. Inserra, 4 N.Y.3d 30, 790 N.Y.S.2d 72, 823 N.E.2d 437 (2004); People v. Jacobs, 11 Misc.3d 137(A) (App. Term., 2d & 11th Jud. Dists.2006).
In this case, the information sets forth sufficient facts to support the charge of Criminal Contempt in the Second Degree. The factual allegations averred to by Officer Roman contend that (1) he observed Defendant standing next to Complainant in front of Complainant's home; (2) the Order of Protection, which required Defendant to stay away from the Complainant, and from that residence, was in full force and effect on the date of the alleged violation; and (3) that Defendant was aware of the existence of the order of protection and its contents, because the order recites that Defendant was present in court when the order was issued and was advised of its contents. Casey, 95 N.Y.2d at 360–61, 717 N.Y.S.2d 88, 740 N.E.2d 233.
These averments clearly express that an unequivocal mandate of a court was in effect, that Defendant had knowledge of its provisions, and that the Defendant intentionally disobeyed it. People v. Filippino, 18 Misc.3d 1135A, 2008 N.Y. Slip. Op. 50318U, *3 (Sup. Ct ., Richmond Co.2008).
Accordingly, the Court finds that the allegations in the information are sufficient to establish reasonable cause to believe that Defendant committed the crime of Criminal Contempt in the Second Degree. B. Defendant's Hearsay Challenge to the Complaint is Denied
Defendant's motion to dismiss on hearsay grounds also is denied as Defendant has waived his right to challenge the information on such grounds. In addition, with respect to Defendant's claim that the nonhearsay allegations as to the order of protection at issue are insufficient, the Court notes that it may take judicial notice of the order of protection, as it was issued out of this court.
i. Defendant Has Waived his Right to Challenge
the Complaint on Hearsay Grounds
All pre-trial motions must be made within 45 days from the day of arraignment.
CPL § 255.20; People v. Dean, 74 N.Y.2d 643, 644, 542 N.Y.S.2d 512, 540 N.E.2d 707 (1989)(motion to dismiss made thee months after arraignment was properly denied); People v. Davidson, 98 N.Y.2d 738, 739–40, 751 N.Y.S.2d 161, 780 N.E.2d 972 (2002).
Certain exceptions exist to the 45 day rule. Where a defendant seeks an adjournment to obtain counsel, the time to make pre-trial motions runs from the date on which counsel appears on the defendant's behalf. CPL § 255.20(1). Where a motion is based upon grounds of which defendant could not, with due diligence, have been previously aware or which, for good cause, could not have been raised within 45 days, the court must entertain the motion. CPL § 255.20(3). Additionally, the 45 day period only begins to run from the date of service of 710.30 notice or service of a copy of an eavesdropping warrant and application, pursuant to CPL 700.70, where such service has been made. CPL § 255.20(1). Finally, a court may give leave to a party to file a late motion. Id. None of these exceptions existed here.
Motions to dismiss based upon the failure of the accusatory instrument to allege an element of the crime are excepted from the 45 day rule, as such motions are jurisdictional in nature. People v. Alejandro, 70 N.Y.2d at 134–35, 517 N.Y.S.2d 927, 511 N.E.2d 71 (failure to plead an element of the crime is jurisdictional and may be made at any time); People v. Casey, 95 N.Y.2d at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233;see also Marks, et al., 7 New York Pretrial Criminal Procedure § 8.1.
In this case, the two challenges raised in Defendant's motion to dismiss are not jurisdictional as they relate only to hearsay defects and, therefore, should have been made within 45 days of arraignment. Casey at 367, 717 N.Y.S.2d 88, 740 N.E.2d 233 (hearsay defect must be made in timely pretrial motion). Defendant contends that the allegations as to Defendant's presence at Ms. Fernandez's apartment are based upon hearsay by Officer Roman, and that, since the People did not file a certified order of protection, the complaint was not converted to an information.
Defendant was arraigned on the complaint in this case on April 17, 2012. On that date, the People declared the complaint converted and that they were ready for trial. Thereafter, Defendant did not make a motion to dismiss the information for 99 days. Defendant did not seek leave of court for the late filing or indicate good cause for such late filing. As Defendant failed to move to dismiss within 45 days of arraignment, he has waived his right to challenge any hearsay defect in the complaint, and his motion is denied. CPL 255.20(1); People v. Figueroa, 203 A.D.2d 72, 610 N.Y.S.2d 25 (1st Dept.1994)(not abuse of discretion to deny motion to dismiss indictment made beyond 45 days after indictment); People v. Broome, 187 A.D.2d 949, 590 N.Y.S.2d 349 (4th Dept.1992); People v. Gomez, 9 Misc.3d 1117A, 2005 N.Y. Misc. Lexis 2206, * * * 15–16, 2005 WL 2495748 (Crim. Ct., New York Co.2005)(motion to dismiss for failure to attach certified copy of order of protection dismissed where made after 45 days); see also People v. Casey, 95 N.Y.2d at 360–2, 717 N.Y.S.2d 88, 740 N.E.2d 233.
ii. The Court May Take Judicial Notice of the
Order of Protection at Issue in this Case
Defendant's second challenge to legal sufficiency-based on the People's failure to file a certified copy of the order of protection at issue-also fails because the order of protection was issued out of this court. Accordingly, the Court may take judicial notice of the existence of such order of protection. Lane v. Lane, 69 AD3d 995, 997 (2d Dept.2009)(New York courts may take judicial notice of record in same court of pending matter or other action); People v. Gomez, 2005 N.Y. Misc. Lexis 2206, * * *7–8, 2005 WL 2495748; Musick v. 330 Withe Ave. Assoc., LLC, 41 A.D.2d 675, 676 (2d Dept.2007).
In Casey, the Court of Appeals held that, in a criminal contempt case, the best practice is to attach a copy of the order of protection which the defendant is alleged to have violated. Casey at 359, 717 N.Y.S.2d 88, 740 N.E.2d 233. However, in Casey, the court also found that, where the information provides sufficient non-hearsay allegations that the order of protection was issued, was in effect, and that the defendant had knowledge of its provisions, a certified copy was not required to convert the information. Casey at 359–60, 717 N.Y.S.2d 88, 740 N.E.2d 233;Gomez, 2005 N.Y. Misc. Lexis 2206, * * *7–8, 2005 WL 2495748. The non-hearsay requirement may also be satisfied by an allegation which is admissible under an exception to the hearsay rules, or, as discussed above in Section 1.A., may be waived by failure to timely object. Casey at 361–62, 717 N.Y.S.2d 88, 740 N.E.2d 233.
Here, even if Defendant had not waived this hearsay objection, as the Court finds he has, neither a certified copy of the order of protection nor a hearsay exception is necessary because the court files contain a copy of the order of protection at issue, and the Court may take judicial notice of that document. People v. Perez, 195 Misc.2d 171, 757 N.Y.S.2d 711 (Crim. Ct., New York Co.2003)(an information need not set forth matters of which judicial notice may be taken); Gomez, 2005 N.Y. Misc. Lexis 2206, * * *7–8, 2005 WL 2495748 (where information fails to allege sufficient non-hearsay facts as to order of protection, court may take judicial notice of order which was issued by same court); People v. Resciniti, 191 Misc. 719, 721–22, 81 N.Y.S.2d 338 (County Ct., Cortlandt Co.1948).
The court file in the matter in which the order was issued
also reflects that Defendant was present in court on January 24, 2012, when the order of protection was issued, a fact of which the Court may also take judicial notice. Wright v. Wright, 209 A.D.2d 889, 618 N.Y.S.2d 931 (3d Dept.1994)(judicial notice taken of parties' prior appearances in same court); People v. Mayes, 19 Misc.3d 48, 51, 858 N.Y.S.2d 856 (App.Term, 2d Dept.) (court took judicial notice of defendant's prior court appearances), app. denied,10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 (2008).
People v. Michael Ramseur, 69035C–2011.
Accordingly, as the Court may take judicial notice of its records which establish that a valid order of protection was issued and that Defendant was present in court when it was issued, Defendant's motion to dismiss the charge of Criminal Contempt in the Second Degree on the grounds that the information fails to set forth sufficient non-hearsay allegations to establish these facts is denied.
2. Motion to Dismiss on the Basis of a Speedy Trial Violation is Denied
As the most serious charge in this case is a misdemeanor, the People must be ready for trial within 90 days. CPL § 30.30(1)(b). Defendant has the burden of demonstrating the existence of a delay in excess of 90 days. People v. Santos, 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 (1986); People v. Khachiyan, 194 Misc.2d 161, 166, 752 N.Y.S.2d 243 (Crim. Ct., Kings Co.2002); CPL § 30.30(1)(b). Once the Defendant has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded. Santos, at 861, 508 N.Y.S.2d 411, 501 N.E.2d 19;Khachiyan, at 166, 752 N.Y.S.2d 243.
The speedy trial clock commenced when the initial accusatory instrument was filed on April 17, 2012. People v. Tran, 177 Misc.2d 63, 678 N.Y.S.2d 234 (Sup.Ct., New York Co.1998). The clock stopped when the People declared readiness on that day. However, any post-readiness delay will be charged to the People if the delay is not excused. People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 (1985).
The People's statement of readiness for trial is valid when they have removed all legal impediments to the commencement of their case. People v. England, 84 N.Y.2d 1, 5, 613 N.Y.S.2d 854, 636 N.E.2d 1387 (1994). Thus, in order for the People to be ready for trial, they must have served and filed a valid accusatory instrument on which the Defendant can be tried.
In this case, Defendant's speedy trial motion is based upon his contention that the hearsay defects in the complaint and, therefore, the complaint has not been converted. However, as the requirement that the complaint contain non-hearsay allegations is waivable, it cannot be the basis of a motion to dismiss on speedy trial grounds. People v. Filippino, 18 Misc.3d 1135A, 2008 N.Y. Slip. Op. 50318U, *4 (Sup.Ct., Richmond Co.2008), citing People v. Dean, 74 N.Y.2d 643, 644, 542 N.Y.S.2d 512, 540 N.E.2d 707 (1989).
As discussed above, the original accusatory instrument was legally sufficient in this case when it was filed. Therefore, the People's statement of readiness, first articulated at arraignment, was valid on that date. People v. Cassaude, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 (2d Dept.)(present readiness for trial established when People have a valid accusatory instrument upon which defendant may be brought to trial), app. denied,76 N.Y.2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521 (1990); People v. Van Hoesen, 12 A.D.3d 5, 7, 783 N.Y.S.2d 89 (3rd Dept.2004)(readiness for trial established by filing valid accusatory instrument), app. denied,4 N.Y.3d 804, 795 N.Y.S.2d 179, 828 N.E.2d 95 (2005).
Accordingly, in order to demonstrate that a delay of 90 days has occurred, Defendant must demonstrate post-readiness delay by the People which was not excused. He has failed to do so.
Defendant was arraigned on April 17, 2012. The People stated that they were ready for trial. The Court adjourned the matter to June 14, 2012. No time during that time period is chargeable to the People.
On June 14, 2012, the People were ready. The Court adjourned the matter for trial to July 27, 2012. No time during that time period is chargeable to the People.
On July 25, 2012, Defendant filed this motion.
On July 27, 2012, the Court directed the People to respond to Defendant's motion and adjourned the matter for decision to August 10, 2012. No time during that time period is chargeable to the People.
On August 10, 2012, the People requested additional time to respond to Defendant's motion, as they had not yet received the minutes of the June 14, 2012 proceeding, which they contended were necessary to show the motion already had been decided. The Court granted the People's request, directing that the People respond to Defendant's motion by August 17, 2012, unless the minutes were not provided to the People by that date. The Court adjourned the matter to September 18, 2012, for decision on the motion.
On August 28, 2012, the People filed an opposition, along with a request that the Court accept the opposition despite its late filing. As no good cause was provided for filing this response more than ten days after the extended time which had been granted to the People, and as the People failed to indicate that the minutes support the basis for their request for an extension of time ro respond, 18 days during that time period are chargeable to the People.
Based on the time calculations set forth above, the Court finds that 18 days are chargeable to the People. Accordingly, Defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.
The Court considered the following in addressing the motion: Notice of Motion, filed July 25, 2012, and Affirmation of Zoe Root, Esq., in Support of Motion; Affirmation of Katie Falasca, Esq., Assistant District Attorney, in Opposition to the Motion, dated August 28, 2012.
This constitutes the Decision and Order of this Court.