Opinion
CR-018997-21NY
09-09-2021
The PEOPLE of the State of New York, Plaintiff, v. Travis SCOTT, Defendant.
Dorothy Weldon (New York County Defender Services), for the defendant. Cyrus Vance, Jr. (James O'Donohue, III, and Meagan Callahan, of counsel), for the People.
Dorothy Weldon (New York County Defender Services), for the defendant.
Cyrus Vance, Jr. (James O'Donohue, III, and Meagan Callahan, of counsel), for the People.
Jay L. Weiner, J.
[This decision provides further rationale for the court's oral ruling of August 24, 2021.]
The defendant was charged in a misdemeanor complaint with eight counts of criminal contempt in the second degree ( Penal Law § 215.50[3] ) (a class A misdemeanor). At arraignment on August 19, 2021, the court set bail in the amount of $30,000 cash, $100,000 insurance company bond, or $100,000 partially secured surety bond (10% secured).
On August 24, 2021, the CPL 170.70 day (see Criminal Procedure Law § 170.70 ), the People served and filed three domestic incident reports ("DIR's"). The People contended that the DIR's converted three of the eight counts and that, accordingly, the defendant should not be released pursuant to CPL 170.70. Defense counsel did not contest the conversion of two of the counts, reserving argument. Counsel argued, however, that, under amendments to the Criminal Procedure Law that went into effect on January 1, 2020 (see L 2019, ch 59, pt KKK, § 1, eff. Jan. 1, 2020; CPL 30.30[5-a] ), the doctrine of "partial conversion" no longer applies for the purposes of keeping a defendant detained under CPL 170.70. Counsel contended that the defendant must be released under CPL 170.70 because there remained counts in the accusatory instrument supported only by hearsay. The matter was second-called in the afternoon and, after hearing argument, the court held that partial conversion was still permissible under CPL 170.70, and it denied the defendant's application for release.
Under the doctrine of partial conversion, the People could validly announce their readiness for trial on individual counts of an accusatory instrument, while remaining unready on other counts of the same instrument (see People v. Brooks , 190 Misc. 2d 247, 250, 736 N.Y.S.2d 823 [App. Term 1st Dept. 2001] ; see e.g. People v. Lang , 5 Misc. 3d 1021[A], 799 N.Y.S.2d 163, 2004 N.Y. Slip Op. 51474[U] *1 [Crim. Ct., Kings County 2004] ).
The defendant was remanded on a supreme court warrant, and defense counsel was actually seeking that $1 bail be set on this misdemeanor case.
CPL 170.70 says:
"Upon application of a defendant against whom a misdemeanor complaint is pending in a local criminal court, and who, either at the time of his arraignment
thereon or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than five days, not including Sunday, without any information having been filed in replacement of such misdemeanor complaint , the criminal court must release the defendant on his own recognizance unless:
1) The defendant has waived prosecution by information and consented to be prosecuted upon the misdemeanor complaint, pursuant to subdivision three of section 170.65; or
2) The court is satisfied that there is good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded replacement of the misdemeanor complaint by an information or a prosecutor's information within the prescribed period" (emphasis added).
CPL 170.70 is derived from the Code of Criminal Procedure and has not been amended since the Criminal Procedure Law was enacted in 1970 (see L 1970, ch 996, § 1). It, and its felony counterpart, CPL 180.80, are designed to ensure that a defendant not be held for an extended period only on the basis of hearsay allegations (see People ex rel. Ortiz v. Commissioner of N.Y. City Dept. of Correction, 253 A.D.2d 688, 678 N.Y.S.2d 91 [1st Dept. 1998], affd 93 N.Y.2d 959, 694 N.Y.S.2d 340, 716 N.E.2d 175 [1999] ).
The partial conversion rule allows for a defendant to be held past the time periods specified in CPL 170.70 when at least one count of a multicount accusatory instrument satisfies the requirements for an information. The rule was explained in People ex rel. Ortiz v. Commissioner of N.Y. City Dept. of Correction, supra. There, over the course of less than two weeks, the petitioner was charged in two separate misdemeanor accusatory instruments with various crimes. Each instrument contained at least one uncorroborated charge and at least one corroborated charge. The petitioner sought writs of habeas corpus in the Supreme Court on the ground that he was being held unlawfully, but his petitions were denied on the ground that at least one count of each accusatory instrument was converted.
The Appellate Division affirmed the denial of the petitions. The court noted the long-standing rule deeming each count of an accusatory instrument "as a matter of law to be a separate and distinct accusatory instrument" ( 253 A.D.2d at 689, 678 N.Y.S.2d 91 ; see also People v. Brooks , 190 Misc. 2d 247, 250, 736 N.Y.S.2d 823 [App. Term 1st Dept. 2001] ; People v. Gulston , 181 Misc. 2d 644, 648, 695 N.Y.S.2d 888 [Sup. Ct., Kings County 1999] ). Based on this rule, the Appellate Division held that conversion of one count in a multicount complaint is sufficient to "warrant retention" under CPL 170.70 ( 253 A.D.2d at 689, 678 N.Y.S.2d 91 ).
The Court of Appeals affirmed. It noted first that the purpose of CPL 170.70 is to " ‘assure that defendants are not held in custody for more than a brief period on the basis of hearsay allegations’ " ( 93 N.Y.2d at 960, 694 N.Y.S.2d 340, 716 N.E.2d 175 [quoting Peter Preiser, Practice Commentary to McKinney's Cons Laws of NY, Book 11A, CPL 170.70 ]). The Court held that each of the two accusatory instruments in the petitioner's cases satisfied the requirements of an information, which, as the Court pointed out, relates to the "facial sufficiency of an information, ‘or a count thereof’ " ( 93 N.Y.2d at 960, 694 N.Y.S.2d 340, 716 N.E.2d 175, quoting CPL 100.40[1] ). The Court concluded that, with respect to each of the two accusatory instruments, the defendant "was not improperly held solely on the basis of hearsay allegations" ( 93 N.Y.2d at 960, 694 N.Y.S.2d 340, 716 N.E.2d 175 [emphasis added]). Accordingly, release under CPL 170.70 was not required.
The recent amendments to CPL 30.30 do not affect the viability of "partial conversion" for purposes of CPL 170.70. The recent amendments provide that the People may not validly announce their readiness for trial if any unconverted counts remain in the accusatory instrument (see CPL 30.30[5-a] ; People v. Herrera , ––– Misc. 3d ––––, ––– N.Y.S.2d ––––, 2021 N.Y. Slip Op. 21226 *2 [Crim. Ct., Bronx County 2021] ). But, the People have never been, and are still not, required to be ready for trial in order for the defendant to be held in custody past the CPL 170.70 date.
The distinction is highlighted by comparing the differing release provisions of CPL 30.30(2) and CPL 170.70. The speedy trial release provision (see CPL 30.30[2] ) provides that a defendant must be released from custody if the People are not ready for trial within a certain time period (for example, 30 days for a class A misdemeanor). By contrast, CPL 170.70 is concerned with detaining a defendant only on the basis of hearsay; it is unrelated to the People's readiness for trial. The practical effect of this conclusion is clear. If the People were required to convert every count of an accusatory instrument in order to avoid CPL 170.70 release, their obvious response would simply be to charge each different incident in a separate accusatory instrument. So long as one accusatory instrument could be fully converted, the defendant could be held in under CPL 170.70 (and $1 bail could be set on all the instruments still containing hearsay). In short, any holding that partial conversion is no longer permissible under CPL 170.70 would provide no real benefit to defendants charged with crimes alleged to have occurred during separate incidents.
I note that the court at arraignments set bail on the basis of all eight counts. When, at most, only three of those counts were converted by the CPL 170.70 date, the court, upon application of the defendant, reduced bail accordingly.