Opinion
2015KN058409
01-19-2016
The People of the State of New York, Plaintiff, v. Nicole Utley, Defendant.
Appearances of Counsel: For Defendant Nicole Utley: Alaina M. Dartt, Esq. The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201 For the People: ADA Deanna Himelson Office of Kenneth P. Thompson, District Attorney, Kings County 350 Jay Street Brooklyn, NY11201
Appearances of Counsel: For Defendant Nicole Utley: Alaina M. Dartt, Esq. The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201 For the People: ADA Deanna Himelson Office of Kenneth P. Thompson, District Attorney, Kings County 350 Jay Street Brooklyn, NY11201 Laura R. Johnson, J.
This case presents the question of whether an informant old enough to have legal capacity to swear an oath but under the age of criminal liability may corroborate the allegations of a criminal complaint by executing a short-form supporting deposition containing a notice that false statements made in it can be punished as a class A misdemeanor under Penal Law § 210.45. This Court finds that she may not.
Defendant (an adult) is charged with Petit Larceny (Penal Law § 155.25); Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40); and Endangering the Welfare of a Child (Penal Law 260.10 [1]), all class A misdemeanors. The complaint, sworn to by a police officer, was based on information provided by the 10-year-old complaining victim, or "C/V." The complaint alleges that the C/V saw the defendant take the C/V's purse containing the C/V's cellphone and glasses, and that defendant refused to return the purse when requested by the C/V and by a third person. The complaint also states that the C/V informed the affiant police officer that she was born on a specified date that made her ten years old on the date of the incident and at all times relevant to this decision. The parties do not dispute that these facts support all elements of the charges listed.
This third person is not an informant; all information provided to the affiant police officer came from the complaining victim.
Defendant was arraigned on that complaint on September 7, 2015. On November 5, 2015, the People served and filed a supporting deposition bearing the caption of this case and signed by the 10-year-old CV. This document was a standard short-form supporting deposition, which reads, in full, "I [Complaining Victim name], have read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge." This text is followed by a form notice, which reads, "False statements made in this document are punishable as a Class A misdemeanor pursuant to section 210.45 of the Penal Law." Beneath that is the complaining victim's dated signature.
By oral argument made on December 9, 2015, followed by written motion filed on December 22, 2015, defendant moves to dismiss the complaint on speedy trial grounds, contending that the People have not declared their readiness for trial on a properly converted information within the time prescribed by section 30.30 of the Criminal Procedure Law (CPL). The People oppose, by papers filed on January 5, 2016.
A misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" (People vr Kalin, 12 NY3d 225, 230 [2009]; CPL 100.40 [1] [c]). As noted, it is not disputed that the facts as alleged in the complaint are sufficient to establish all the elements of the offenses charged. The sole question is whether the supporting deposition was properly "subscribed and verified" (CPL 100.20) so as to effectively convert the hearsay complaint to a non-hearsay information upon which the People could proceed to trial.
Criminal Procedure Law § 100.30 sets forth several methods by which a misdemeanor complaint or a supporting deposition may be verified. As applicable here,
(1) (a) Such instrument may be sworn to before the court with which it is filed.
(b) Such instrument may be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.
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(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.
(e) Such instrument may be sworn to before a notary public.
(2) An instrument specified in subdivision one may be verified in any manner prescribed therein unless in a particular case the court expressly directs verification in a particular manner prescribed in said subdivision one.
The People here chose to use the method in CPL 100.30 (1) (d). This Court concludes that because any false statements made by the C/V could not have been punished "as a class A misdemeanor pursuant to section 210.45 of the penal law" due to her young age, this was not a permissible method of verification, although any of the other methods set out above would have been. Because the defect in verification is apparent on the face of the "information" and not latent, it must be dismissed (cf. People v Camacho, 185 Misc 2d 31, 33-34 [Crim Ct, Kings County, 2000], citing Matter of Edward B., 80 NY2d 458, 461, 463 [1992] [latent defects]). Moreover, more than 90 days have now elapsed since the defendant's arraignment in this case without the People ever having had an accusatory instrument upon which they could proceed to trial, and therefore the charges must be dismissed altogether pursuant to CPL 30.30.
CPL 100.30 (1) (c) deals with instruments filed by a public servant, and is inapplicable to this case.
The Timing of this Motion
At the outset, defendant's motion is timely. The People filed the supporting deposition off calendar on November 5, 2015. Although defendant's written motion to dismiss was not filed until December 22, 2015, which was 47 days after the filing of the supporting deposition and purported conversion of the accusatory instrument to an information, defendant was statutorily entitled to 45 days after arraignment on that putative information, which did not occur until December 9, 2015, to file a written motion to dismiss (CPL 170.30 [1] [a]; 170.45; 210.45). Alternatively, defendant put the People on notice of her intent to file such a motion on December 9th, which was only 37 days after the purported conversion, and then filed the motion in accordance with the schedule set by the Court.
Along with the supporting deposition in question, the People filed a statement of readiness on November 5, 2015. If the supporting deposition properly converted the complaint to an information, then, the People's statement of readiness was made 59 days after the commencement of the action, and tolls the speedy trial clock as of the date it was filed (People v Stirrup, 91 NY2d 434, 440 [1998]).
Statements of readiness made in the absence of defense counsel are deemed effective at the time of filing, so long as defense counsel is promptly notified (People v Anderson, 252 AD2d 399, 400 [1st Dept 1998], citing People v Kendzia, 64 NY2d 331, 337 [1985]). Here, although the statement of readiness was dated November 2nd, it was neither filed nor served until November 5th, which is therefore the governing date. The People incorrectly count this as 60 days (P's Memorandum of Law, Argument § II).
If the supporting deposition did not properly convert the complaint, however, the speedy trial clock was running until December 9, 2015, when the Court set the present motion schedule (CPL 30.30 [4] [a]), for a total of 93 chargeable days, requiring dismissal.
The Conversion Issue
As noted, the supporting deposition was not sworn. Instead, the C/V signed below a form notice that false statements made within it were punishable as a Class A misdemeanor pursuant to Penal Law § 210.45, making a punishable false written statement. Defendant argues that this is meaningless, since "a person less than sixteen years old is not criminally responsible for conduct" (Penal Law § 30.00), and the 10-year-old complaining victim therefore cannot be punished in that fashion. Absent a legitimate verification, she argues, the supporting deposition is ineffective, and the complaint has never been converted to an information.
Penal Law § 210.45 provides that a person is guilty of making a punishable false written statement "when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable."
In response, the People primarily argue that this particular child was capable of testifying under oath and that they have followed the procedures dictated in People v King, 137 Misc 2d 1087 (Crim Ct, NY County 1988), for making such a determination. Alternatively, they contend that it is within this Court's discretion to conduct its own voir dire of the complaining witness and determine whether the child "was competent when she signed the supporting deposition" (P's Memorandum of Law, Argument § II). Finally, the People argue that the form penalty notice in the supporting deposition is not meaningless because, although this witness cannot be prosecuted in criminal court pursuant to Penal Law § 210.45, she is nonetheless subject to adjudication as a juvenile delinquent if her written deposition is false.
The People's Memorandum of Law is not paginated.
The first two arguments are, to begin with, based on the misapprehension that "there is a presumption that children under the age of 12 are not swearable" (P's Memorandum of Law, Introduction). Under Criminal Procedure Law § 60.20 (2), "Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath" (emphasis added). More important, however, these arguments are simply irrelevant. Contrary to the People's main argument, the complaining victim's capacity to take an oath is not what is at issue here. At the age of 10, she was presumptively capable of swearing to the contents of her supporting deposition (CPL 60.10). If she had signed an affidavit, sworn to under oath before a notary (CPL 100.30 [1] [e]), or had sworn to her supporting deposition before the court or a desk sergeant, such a supporting deposition would have been acceptable and sufficient to verify the complaint and convert it to an information. The problem is, regardless of her presumptive testamentary capacity and even the claim (whatever it means) that the Assistant District Attorney specifically ascertained that she "understood what it meant to sign a supporting deposition" (1/5/16 "Affirmation of Swearability"), the complaining victim did not actually take any oath; she merely subscribed her document under threat of a penalty that, defendant argues, did not apply to her.
To be sure, the presumptive age of swearability used to be 12 years old. However, as part of the Sexual Assault Reform Act of 2000, the age of presumed competence was lowered to 9 years old (L. 2000 c, 1 § 11). Laboring under the belief that they must demonstrate the C/V's competence to give sworn testimony, the People provide an Affirmation of Swearability from the prior assigned ADA — albeit one prepared not at the time of the execution of the supporting deposition, but on January 5, 2016, in specific response to the present motion.
Had this been the issue, the People's failure to record their examination of the child would have made their swearability determination unreviewable by the court and therefore insufficient (see People v Richard, 33 Misc 3d 855 [Crim Ct, Kings County 2011]; People v Soler, 144 Misc 2d 524, 527 [Crim Ct, NY County 1989]).
Accepted for Miscellaneous Reports Publication
The Court of Appeals declaration in People v Holmes, 93 NY2d 889, 891 (1999), that "there is no additional requirement that complainant raise his hand and orally recite an oath" is not to the contrary. The C/V's statement here did not even purport to be sworn.
Thus, the real question in this case is whether the CPL 100.30 (1) (d) form acknowledgement of the penal law punishment for false statements is a sufficient or proper method to verify a supporting deposition notwithstanding that the penalty to which it expressly refers is inapplicable to the subscriber — a fact that is apparent on the face of the purported information in this case, which sets forth the C/V's age. Although to this Court's knowledge, there is no appellate decision that addresses this issue, lower courts have reached different conclusions as to whether persons under the age of 16 may so verify a supporting deposition.
In People v Phillipe, 142 Misc 2d 574, 586-587 (Crim Ct, Kings County 1989), the court was apparently persuaded that the fact that a child under the age of 16 could theoretically be adjudicated delinquent in a Family Court proceeding for perjury or false written representation was a sufficiently analogous "legal consequence" to ensure that such a verification "evince[d] a commitment to tell the truth" (id. at 587; see also People v Malone, 140 Misc 2d 602, 603 [Crim Ct, Kings County 1988] [same]). The Phillipe court also found that the absence of any explicit restriction of the self-attestation procedure set out in CPL 100.30 (1) (d) to adults was "no legislative oversight," but rather was evidence that the Legislature intended to allow persons of all ages, including children who could not be prosecuted in criminal court, to employ it as a verification method (id.). By contrast, in People v Pierre, 140 Misc 2d 623, 627 (Crim Ct, Kings County 1988), the court viewed citation of the potential penal law punishment as "an empty threat" with respect to a child, one "that cannot operate to instill in the signer of such a deposition the seriousness of the step being taken."
With all respect to the courts that have held otherwise, this Court finds that the method described in CPL 100.30 (1) (d) cannot be used for verifying the supporting deposition of a child under the age of 16. The very remote possibility that a child who intentionally made a false statement in his or her supporting deposition might be adjudicated delinquent in Family Court still does not mean that such an act would subject him or her to the "punish[ment] for a class A misdemeanor" adverted to in that subdivision. On the contrary, a Family Court adjudication would result in a very different type of disposition ( see Family Court Act, Article 3, Part 5, § 350.1 et seq.) than the penalties authorized for an adult convicted of a class A misdemeanor under the Penal Law. The absence of explicit language in the subdivision restricting its use to persons 16 years of age or older is essentially immaterial where it does explicitly reference a type of punishment ("as a class A misdemeanor") that applies only to them; the more expansive reading given it by the Phillipe and Malone courts renders this language meaningless.
It is, of course, true that in enacting and then amending CPL 100.30, the Legislature intended in
general to make the verification process more flexible and less cumbersome (see People v Phillipe, 142 Misc 2d at 584-585; People v Pierre, 140 Misc 2d at 171-172 [discussing legislative history]). Nonetheless, the Legislature stopped short of simply allowing witnesses to sign a supporting deposition setting out their first-hand account, and opted instead to create a menu of methods, within each of which it added one or more very specific further requirements designed to ensure that the witness does so truthfully. Not every witness can avail him or herself of all of the methods set forth by the Legislature in § 100.30. For example, only a "public servant" can verify pursuant to CPL § 100.30 (1) (c). In this Court's view, it would be an arrogation of legislative authority to ignore the express safeguard of potential Penal Law punishment and nonetheless determine a person under the age of 16 may verify pursuant to subsection (1) (d) either because he or she perhaps could be subject to somewhat roughly analogous Family Court proceedings, or on the theory that the mere provision of the penalty notice may impress the youthful signer with the seriousness of the act.
CONCLUSION
The child victim in this case was presumptively swearable, and could easily have sworn to the supporting deposition before a notary. That was not done, however. Because the original complaint was not corroborated by the filing of a properly verified supporting deposition, the People are chargeable with 93 days. Defendant's motion to dismiss is GRANTED.
This constitutes the Decision and Order of the Court. DATED: January 19, 2016 Brooklyn, New York /s/. Laura R. Johnson, J.C.C.