Opinion
No. CR–1017–14.
04-14-2015
The PEOPLE of the State of New York, v. Alexander BLUM, Defendant.
Opinion
By Notice of Motion dated March 5, 2015, defendant, through his attorney Michael Pollok, Esq., requests the relief which is detailed below.
The People, through their attorney, Senior Assistant District Attorney Margaret Walker, responded on March 26, 2015, as detailed below. Defendant had the opportunity to file a reply, but declined to do so. Neither side requested oral argument and the motion was marked fully submitted on April 6, 2015.
Lack of Facial Sufficiency
Defendant seeks to dismiss the misdemeanor information herein alleging violation of section 130.52 of the Penal Law (Forcible Touching) as being facially insufficient pursuant to sections 100.15 of the Criminal Procedure Law of the State of New York (CPL). The People deny that the information was facially insufficient.
The information was in the name of the alleged victim. However, it is now brought to the Court's attention that this information was in fact signed by Trooper Daniel Scali of the New York State Police. This renders this information to be defective on its face and it is dismissed pursuant to section 100.15 CPL which requires, intra alia, that the information “... must be subscribed and verified by a person known as the complainant.” ' As the complainant herein (the alleged victim) did not subscribe and verify this information, it is dismissed as defective on its face.
Speedy trial issue
The information alleging unlawful imprisonment in the second degree in violation of section 135.05 of the Penal Law was brought in the name of and was signed by Trooper Scali. However, Trooper Scali notes that the allegations of fact in the information were based on the supporting deposition of the alleged victim, which was attached to the information. The supporting
deposition submitted to the court with the Trooper's information on November 20, 2014, was unsigned. A signed copy of the supporting deposition was not submitted to the Court until February 26, 2015, some 98 days later.
CPL Section 100.40 requires that:
1. An information, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15 ; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; (emphasis added )
The information here was defective in that the supporting deposition upon which the complainant trooper relied was unsigned, and was therefore a nullity. As the People concede, pursuant to section 30.30 CPL, the speedy trial clock begins to tick against the People where, as here, the defendant appears in Court for arraignment on the return date of the appearance tickets (such appearance in the case at bar occurred on November 20, 2014.) People v. Parris, 79 N.Y.2d 69 (1992). Ninety-eight days passed before the defect in the information was cured. This requirement (of proper jurisdiction), is of constitutional dimension, and is not waivable (see, People v. Scott, 3 N.Y.2d 148 (1957), even by defense counsel consenting to adjournments. The objection that the information does not state a crime is also not waivable. Scott, op. cit.
Defense counsel and the Prosecutor disagree as to whether the adjournments had in this case were on consent. Given the Court's ruling on the jurisdictional defect, the issue of consent to the adjournments is moot.
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Section 30.30 requires that the People stand ready for trial within 90 days where, as here, defendant was accused of a misdemeanor. Inasmuch as the information was fatally defective during, and past, this 90 day period, it is dismissed.
Having dismissed the informations herein for the reasons articulated, supra, the Court sees no need to address defendant's other contentions.
This decision also constitutes the Order of this Court.
SO ORDERED.