Opinion
2009QN050520.
Decided March 10, 2010.
The defendant, Thomas Sykes, moves for his release on his own recognizance pursuant to Criminal Procedure Law ["CPL"] § 30.30(2)(b), arguing that the People have not been ready for trial within thirty days of his commitment to corrections custody. Because the applicable period commences with the filing of the prosecutor's information in criminal court, and because no time has accrued to the People since that date, the defendant's motion is denied.
PROCEDURAL HISTORY
On September 13, 2009, the defendant was arraigned on a felony complaint charging him with two counts of Criminal Possession of a Weapon in the Second Degree, Penal Law [" PL"] §§ 265.03(1)(b), (3), three counts of Reckless Endangerment, PL § 120.25 and one count of Criminal Possession of a Weapon in the Third Degree, PL § 265.02(1). Bail was set at $50,000 insurance company bond or cash. The defendant executed a written waiver of his constitutional rights to a speedy trial as well as all statutory rights under CPL §§ § 180.80, 190.80 and 30.30 until October 13, 2009 and the matter was adjourned to September 29, 2009 in the felony conference part for possible disposition. On September 29, 2009, the matter was again adjourned to October 22, 2009 for possible disposition and the waiver was extended to November 5, 2009. Finally, on October 22, 2009, the matter was adjourned to November 5, 2009 for grand jury action.
On November 5, 2009, there was no grand jury action. Upon a showing of good cause by the People, however, the Court declined to release the defendant pursuant to CPL § 180.80 and granted an extension of the period for disposition of the felony complaint until November 10, 2009. On November 10, 2009, the People filed with the Court a Notice of Prosecutor's Information, indicating that the grand jury had voted a direction to file a prosecutor's information. Based upon this filing, the Court adjourned the matter for further proceedings to November 23, 2009 in the misdemeanor all-purpose part.
On November 16, 2009, the People filed in Queens County Supreme Court a direction by the grand jury to the District Attorney to file a prosecutor's information as well as a prosecutor's information charging the defendant with the offense of Resisting Arrest, PL § 205.30. The grand jury direction was signed by the foreperson and so ordered by a Supreme Court Justice ( see CPL § 190.70). The prosecutor's information was subscribed by the District Attorney and alleged that on or about September 13, 2009, in Queens County, the defendant intentionally prevented or attempted to prevent Detective Edward Waldron from effecting an authorized arrest of the defendant or another person ( see CPL § 100.35). Although the prosecutor's information bore the caption "Criminal Court of the State of New York," it was not filed in criminal court at that time. Also attached to the prosecutor's information was a Notice of Readiness for Trial, accompanied by an affidavit of service upon defense counsel.
On November 23, 2009, although the prosecutor's information had yet to be filed in criminal court, the People answered ready for trial in the misdemeanor all-purpose part and the matter was adjourned to December 16, 2009 for the People to provide open file discovery to defense counsel. Bail was reduced on November 23, 2009 to $10,000 insurance company bond or $5,000 cash. On December 16, 2009, the People served open file discovery upon defense counsel. Again, although the prosecutor's information still had not been filed in criminal court, the People answered ready for trial. The matter was adjourned to December 18, 2009 for the People to file the prosecutor's information in criminal court. On December 18, 2009, the People handed up to the Court a copy of the prosecutor's information. Defense counsel waived the defendant's appearance and consented to an adjournment to January 8, 2010 for the defendant to be arraigned on the prosecutor's information. On December 23, 2009, the defendant filed the instant speedy trial release motion.
SPEEDY TRIAL RELEASE
Pursuant to CPL § 30.30(2)(b), "where a defendant has been committed to the custody of the sheriff in a criminal action he must be released on bail or on his own recognizance . . . if the People are not ready for trial within thirty days from the commencement of his commitment to the custody of the sheriff in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and one of which is a felony." Accordingly, where a defendant charged with a class A misdemeanor is committed to corrections custody, he is entitled to release if the People are not ready for trial within thirty days of his commitment. In circumstances "where a criminal action is commenced by the filing of a felony complaint and thereafter, in the course of the same criminal action . . . a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision two must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument" (CPL § 30.30[d]). Thus, where the People file a prosecutor's information pursuant to a grand jury direction charging a defendant committed to corrections custody with a class A misdemeanor, the defendant is entitled to release if the People are not ready for trial within thirty days of the defendant's commitment. This period is calculated from the date of the filing of the prosecutor's information. Although CPL § 30.30(5)(d) does not specify in which court the prosecutor's information must be filed, the statute explicitly states that a prosecutor's information must be filed "pursuant to section 190.70" of the CPL.
CPL § 190.70(1) provides that "a grand jury may direct the district attorney to file in a local criminal court a prosecutor's information charging a person with an offense other than a felony when (a) the evidence before it is legally sufficient to establish that such person committed such offense, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense." The grand jury must file such direction "with the court by which it was impaneled" (CPL § 190.70). As defined in CPL § 190.05, a grand jury is "impaneled by a superior court and constitut[es] a part of such court." A "superior court" includes the supreme court (CPL § 10.10[a]).
A grand jury direction "must be signed by the foreman or acting foreman" and "must contain a plain and concise statement of the conduct constituting the offense to be charged" (CPL § 190.70). When a grand jury direction is filed, "the court must . . . issue an order approving such direction and ordering the district attorney to file such a prosecutor's information in a designated local criminal court having trial jurisdiction of the offense or offenses in question" (CPL § 190.70).
Here, the grand jury direction was properly filed in Queens County Supreme Court and so ordered by a Supreme Court Justice on November 16, 2009. Nevertheless, the prosecutor's information, which was attached to the grand jury direction and filed in Queens County Supreme Court on that date, was not filed in compliance with CPL § 190.70(3) because it was not filed in "a local criminal court having trial jurisdiction of the offense or offenses in question."
"Trial jurisdiction" exists when a court "has authority to accept a plea to, try, or otherwise finally dispose of an accusatory instrument" which has been properly filed with it (CPL § 1.20). Although a superior court, which includes the supreme court, has concurrent trial jurisdiction of all misdemeanors with the local criminal courts ( see CPL § 10.20[b]), "the only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney" (CPL § 210.05).
Further, pursuant to CPL § 10.20(2), a superior court exercises preliminary jurisdiction of all offenses "only by reason of, and acting through, the agency of their grand juries." In contrast, a criminal court has preliminary jurisdiction of an offense when "a criminal action for such offense may be commenced therein" and when such court "may conduct proceedings . . . which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof" (CPL § 1.20). Additionally, CPL § 100.05 provides that "the only way in which a criminal action can be commenced in a superior court is by the filing therewith by a grand jury of an indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of a local criminal court accusatory instrument." When read together, these sections indicate that although the superior court has original jurisdiction over a crime, an indictment must be issued and filed by a grand jury in order for the superior court to retain and exercise such jurisdiction ( see People v Correa, 2010 WL 606688, 2010 NY Slip Op 01533, 9 [1st Dept 2010] [citations omitted]). Accordingly, a superior court has jurisdiction to try a misdemeanor offense which is charged in an indictment or superior court information but does not have jurisdiction to try a misdemeanor offense charged in a prosecutor's information ( id.; see also People v Miniero, 179 Misc 2d 830, 835 [Crim Ct, Kings County 1999]).
Moreover, by definition, a prosecutor's information is an instrument which is filed with the local criminal court. The form and content prescribed for a prosecutor's information dictate that it "must contain the name of the local criminal court with which it is filed" (CPL § 100.35) (emphasis added). Queens County Criminal Court is the local criminal court which has trial jurisdiction of the misdemeanor offense of Resisting Arrest, the crime charged in the prosecutor's information in this case. Thus, in order for the prosecutor's information to be filed in accordance with CPL § 190.70(3), it must be filed in Queens County Criminal Court. The prosecutor's information was not appropriately filed until December 18, 2009, when it was handed up to the Court during calendar-call. Under CPL § 30.30(5)(d), in order for the speedy trial release period applicable to the misdemeanor offense to attach, the prosecutor's information must be filed "pursuant to [CPL] section 190.70." A filing which does not comply with the requirements of CPL § 190.70(3) does not constitute a filing "pursuant" to that section. Because Queens County Supreme Court does not have trial jurisdiction of the offense charged, the filing of the prosecutor's information in that court failed to comply with the requirements of CPL § 190.70(3). Consequently, the misdemeanor speedy trial release period did not begin until December 18, 2009, when the prosecutor's information was filed in criminal court as required by CPL § 190.70(3).
Furthermore, because on November 16, 2009 the People had yet to file the prosecutor's information in criminal court, the Notice of Readiness for Trial filed with the prosecutor's Information in Queens County Supreme Court and served upon defense counsel on that date was illusory ( see Miniero, 179 Misc 2d at 835 [because the supreme court did not have trial jurisdiction of the offense charged in the prosecutor's information which was filed with that court, the statement of readiness predicated upon the prosecutor's information was ineffectual and a nullity]).Trial readiness presupposes that "the People have done all that is required of them to bring the case to a point where it may be tried"( People v England, 84 NY2d 1, 4) and is established when "the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody, and where the People have complied with all pending proceedings required to be decided before trial can commence" ( People v Caussade, 162 AD2d 4, 8 [2d Dept 1990] [internal citations omitted]). Here, the People did not have a valid accusatory instrument upon which the defendant might be brought to trial until the prosecutor's information was filed in criminal court on December 18, 2009 and therefore could not have been ready for trial prior to that date.
Nevertheless, regardless of the People's unreadiness prior to December 18, 2009, no time is chargeable to the People subsequent to that date because each ensuing period of delay is subject to exclusion under CPL § 30.30(4). On December 18, 2009, defense counsel waived the defendant's appearance and consented to an adjournment until January 8, 2010 in order for the defendant to be arraigned on the prosecutor's information. The defendant filed and served the instant speedy trial release motion off-calendar on December 23, 2009. Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see People v Kopciowski, 68 NY2d 615, 617; People v Worley, 66 NY2d 523, 525). Furthermore, under CPL § 30.30(4)(a), "a reasonable period of delay resulting from other proceedings, including but not limited to . . . pretrial motions . . . and the period under which such matters are under consideration by the court" is specifically excluded from "the time in which the People must be ready for trial" ( Worley, 66 NY2d at 525; see also People v Douglas, 209 AD2d 161, 162 [1st Dept 1994] [while a defendant's pretrial motion is subjudice, that period of delay is excludable regardless of the People's readiness or unreadiness at the time]). Accordingly, the period from December 18, 2009 to January 8, 2010 is not chargeable to the People.
On January 8, 2010, the defendant was arraigned on the prosecutor's information and the People answered ready for trial. The matter was adjourned to January 14, 2010 for decision on the defendant's speedy trial release motion. This adjournment is also excludable as the period under which the defendant's motion was under consideration by the Court ( see CPL § 30.30(4)(a); Worley, 66 NY2d at 525).
On January 14, 2010, the Court rendered an oral decision on the defendant's speedy trial release motion, finding fifteen (15) days chargeable to the People. Pursuant to their practice of providing open file discovery and consenting to appropriate pretrial hearings, the People consented to a Huntley hearing and the matter was adjourned to January 29, 2010 for hearings and trial. Off calendar on January 19, 2010, the People filed and served a statement of readiness for trial. Since the People are entitled to a reasonable period of time to prepare for trial following a decision on a defendant's speedy trial motion, the adjournment from January 14, 2010 to January 19, 2010 is excludable ( see People v Douglas, 156 AD2d 173 [1st Dept 1989]).
The Court incorrectly charged the People with time starting from November 10, 2009 when the People filed the Notice of Prosecutor's Information in criminal court rather than from December 18, 2009 when the prosecutor's information was filed in criminal court as required pursuant to CPL § 30.30(5)(d).
On January 29, 2010, the Court rendered an amended oral decision on the defendant's speedy trial release motion, finding zero (0) days chargeable to the People and stated that a written decision would follow. Additionally, on that date, the Court set a schedule for the defendant to file a motion to preclude the use against him of evidence of statements made to a public servant. All time from January 29, 2010 therefore is also excludable as the period under which the defendant's motion is under consideration by the Court ( see CPL § 30.30(4)(a); Worley, 66 NY2d at 525).
Accordingly, because the People are not chargeable with any delay from the date the prosecutor's information was properly filed to the present date, the defendant's motion for release pursuant to CPL § 30.30(5)(d) is denied.