Opinion
0809004.
Decided September 25, 2008.
The defendant, Omar Allen, was arrested on Sunday, August 31, 2008 for the crimes of Possession of a Weapon 3°, a violation of Section 265.02 (4) of the Penal Law and various Vehicle and Traffic Offenses. The defendant, without counsel, was arraigned later that same day. Prints were not available and the defendant was remanded. The case was adjourned to Wednesday, September 17, 2008 and assigned counsel was notified.
The Bronxville Village Court has a Criminal Term the first, third and fifth Wednesday (when there is a fifth Wednesday) every month. The Assistant District Attorney is scheduled to appear on these days. Although there would ordinarily be a Criminal Term on September 3, 2008, there was none because of various reasons. The case was adjourned to September 17, 2008.
On September 3, 2008 the Westchester District Attorney's Office faxed a letter to the Legal Aid Society who was assigned to represent the defendant. The letter stated "We understand that you have been assigned to represent the above captioned defendant with respect to charges pending in the Bronxville Justice Court. As there is no scheduled session of the Bronxville Justice Court until September 17, 2008, please advise our office and the Court by noon, today, Wednesday September 3, 2008, if you will be seeking a felony hearing within the time parameters of CPL 180.80. By our calculation, your client would be eligible for a felony hearing on September 8, 2008. Also, please advise the Court if you would like an all purpose date in order to discuss bail. Failure to respond to this letter by time requested will be deemed a reservation of the Felony Hearing." A copy of this letter is in the Court's file.
The parties agree that the Legal Aid Society contacted the District Attorney's Office and the Bronxville Village Court Clerk and said in sum and substance, that the defendant is not requesting a Felony Hearing and that the matter should be on for all purposes. No written memorandum of the above was made available to the Court.
On the adjourned date, September 17, 2008, the defendant was produced in Court and the Legal Aid Society made an application to have their client released because the provisions of the Criminal Procedure Law Section 180.80 was violated.
That statute states that "Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more then one hundred twenty hours or, in the event of a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance unless: 1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action or condition, or occurred with his consent; or
2. Prior to the application:
(a) The district attorney files with the court a written certification that an indictment has been voted; or
(b) An indictment or a direction to file a prosecutor's information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or
3. The court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstances which precluded disposition of the felony complaint within the prescribed period or rendered such action again the interest of justice."
A Preliminary Hearing is a critical stage of the prosecution, People v. Hodge 53 NY2d 313; Coleman v Alabama 399 US 1. The defendant has a statutory right to have a Preliminary Hearing or the felony complaint disposed of within the time limits of 180.80. By the complaint disposed of means the charges dismissed, indicted or reduced to a misdemeanor. If the above does not occur the defendant will be released without bail. The defendant may waive his statutory rights but a waiver will not be implied. There is a high standard of proof for a waiver. People v. Lupo 74 Misc 2d 679. Even if the defense never requested a Preliminary Hearing the defendant is entitled to the benefits of 180.80. Gilbert v. Scoralick 134 Misc 2d 532. The defendant's rights under 180.80 are unequivocal. They begin at this time of arrest and not when the defendant requests a Preliminary Hearing. Wagner v. Infante, 167 AD2d 630.
The District Attorney urged a number of arguments against the release of the defendant. They argued that the defense can ask for a Felony Hearing at any time. If they ask for a Felony Hearing that would make 180.80 run. They went on to say that based on the fact that this case was adjourned for all purposes, any 180.80 time would run from tonight, the adjournment date of September 17, 2008, and they argued that for the defendant to benefit from 180.80 the defendant should say that he would like a Felony Hearing and Legal Aid told us that they were not seeking a hearing. This is not a correct interpretation of 180.80. See Vancour v. Scoralick 140 AD2d 658.
The District Attorney also argued that the defense did not want a felony hearing. They put it on for all purposes tonight. But the fax to the Legal Aid Society asked the question of whether ". . . you will be seeking a felony hearing. . ." The defense does not have to seek a Felony Hearing. The defense can stand mute. It is the obligation of the People to have the Felony Hearing or indict the defendant before 180.80 day unless the defendant waives his rights under 180.80. It is not accurate to say that they (the defense) put it in for all purposes. The Legal Aid Society did not put it on for September 17, 2008. At the arraignment on August 31, 2008 the Magistrate adjourned the case to September 17, 2008. When the defense was asked if it should be on for all purposes, the defense answered yes.
A waiver of 180.80 should be clear and unambiguous. The District Attorney's letter should ask the questions directly. Do you waive 180.80?
The Court also comments that although the Court was not scheduled to sit on the 180.80 day, arrangements should have been made for a Preliminary Hearing on the 180.80 day unless 180.80 was waived or the complaint was otherwise disposed of. Further, immediately following 180.80 day, the assigned counsel should have utilized the expedited Writ of Habeas Corpus procedure which is available in Westchester Supreme Court.
On September 17, 2008 the Court did, over the objections of the District Attorney, release the defendant on his own recognizance. The Court writes this decision to explain its reasoning in the event that the District Attorney Office wishes to appeal. Such an appeal would be entertained because this issue reoccurs frequently.
So Ordered: