Opinion
2014-78516
05-19-2015
People of the State of New York, v. Christina Fowles, Defendant.
ADA Brad Rudin Tompkins County District Attorney's Office 320 N. Tioga Street Ithaca, NY 14850 Heidi S. Paulino, Esq. Wiggins & Paulino Law Office 308 North Tioga Street, Suite 1 Ithaca, NY 14850
ADA Brad Rudin
Tompkins County District Attorney's Office
320 N. Tioga Street
Ithaca, NY 14850
Heidi S. Paulino, Esq.
Wiggins & Paulino Law Office
308 North Tioga Street, Suite 1
Ithaca, NY 14850
Scott A. Miller, J.
On January 10, 2014, felony complaints were filed in Ithaca City Court against Defendant Christina Fowles, charging two counts of Criminal Possession of a Forged Instrument in the Second Degree (PL §170.25). Defendant was arraigned, with counsel, on the same date and no adjournments were requested. At the April 7, 2014 Court-ordered (and off the record) conference, with counsel present, the conference judge dismissed the felony complaints "in the interest of justice" and a CPL §160.50 seal was entered. It is undisputed that the conference judge did not properly reduce the felony complaints pursuant to CPL §180.50, and further it is undisputed that the People never moved to reduce the felony complaints. The Defendant, by and through her attorney, Heidi Paulino of Ithaca, New York, now moves to dismiss the accusatory instruments on speedy trial grounds. The Court has carefully reviewed the parties' extensive motion papers in this matter, which include:
Defendant's Motion, dated February 20, 2015
People's Answer, dated March 8, 2015
Defendant's Reply Affirmation, dated March 25, 2015
People's Responding Papers, dated April 13, 2015
The Defendant and the People are in agreement that 137 days are chargeable to the People for
speedy trial purposes, CPL §30.30. The sole point of contention is whether the period from
April 7, 2014 to June 16, 2014 (a period of 70 days) is chargeable to the People or the Defendant.
Defendant contends that the People affirmatively requested on April 7, 2014 that the felony complaints be dismissed. The People contend that their request for a dismissal in the interests of justice applied only to Docket 13-75292, a misdemeanor Criminal Possession of a Forged Instrument in the Third Degree count, which has been properly reduced from a felony complaint originally charging Criminal Possession of a Forged Instrument in the Second Degree. There are no reduction papers in the file and no reduction order was signed. The felony complains are not marked indicating a reduction. On June 16, 2014, the conference judge signed an Order restoring the felony complaints upon the grounds that the complaints had been "reduced and dismissed by the Court in error." However, a close review of the entire case file indicates that there is no notation or record that the felony complaints were ever reduced on April 7, 2014. The Court, on April 7, 2014, merely dismissed the felony complaints in error without first properly reducing the charges to misdemeanors.
Based upon the moving papers, there exists a genuine factual dispute which this Court cannot resolve without a hearing. See People v. Gruden, 42 NY2d 214 (1977). However, the People may well have an insurmountable burden at this hearing. For, at this Gruden hearing, the People will have the burden of establishing both that a "sufficiently clear" and "contemporaneous record" exists to support the People's position that the People did not move to dismiss the felony complaints in the interests of justice and consequently that such time is not chargeable to the People. See People v. Cortes, 80 NY2d 201, 215 (1992). If the People cannot satisfy this burden, then certainly the 70 days at issue are chargeable to the People and 207 days of chargeable time would require dismissal as the People were not ready within the required 6 months. CPL §30.30(1)(a).
However, the Court will not put the People to this test. Defendant is correct that this Court need not resolve the above factual dispute. Both the Defendant and the People concede that the conference judge's April 7, 2014 dismissal of the felony complaints was in error. The June 16, 2014 Order by that same conference judge "restoring" the felony complaint confirms such error. The question is, what is the legal effect of such error? This Court follows the prevailing authority, which makes it clear:[W]here the reduction was invalid at its inception, the purported reduction,
conversion and dismissal of the felony complaint are "of no legal effect and
the felony complaint remains pending." People v. Minor, supra, 144 Misc 2d
at 848, 549 N.Y.S.2d 897. See also Preiser, McKinney's Consolidated Laws of
New York (Book 11A), Supplementary Practice Commentaries (2000), Criminal
Procedure Law § 180.50, 2003 Cumulative Pocket Part, at 27 (a purported
reduction of a felony complaint which does not comply with CPL § 180.50
"is a nullity and .... [v]acating the [improperly reduced] misdemeanor charge
leaves the felony charge pending, which now can proceed") (emphasis added).
People v. Carrabotta, 2 Misc 3d 685, 691-692 (Crim. Ct. Queens Co., 2003).
Thus, since the April 7, 2014 dismissal was a legal "nullity," the felony complaints were still deemed to be pending. The erroneous and jurisdictionally defective CPL §160.50 seal did not extend its reach into the District Attorney's office and remove the People's file. If, as the People assert, they were unaware of the conference judge's erroneous dismissal, nothing stood in the People's way of obtaining an indictment and consequently stating readiness within the six month time period. Nor did anything prevent the People from filing proper reduction papers before the 6 month speedy trial period elapsed. Simply put, the conference judge's jurisdictional error on April 7, 2014, had no impact on the People's ability to move forward with this case and this legal nullity is not an "exceptional circumstance." CPL §30.30(4)(g).
Here, the People, by employing simple due diligence, especially after receiving this Court's April 10, 2014 "Disposition Report" which clearly notified the District Attorney that the charges had been erroneously dismissed, could have immediately contacted this Court. Instead, the People waited 67 days until on or about June 16, 2014, to orally request by telephone, ex-parte, that the charges be restored.Although, there is no precise definition of what constitutes an "exceptional circumstance" under CPL §30.30(4)(g), "the range of the term's application is limited by the dominant legislative intent informing the speedy trial rule, namely, to discourage prosecutorial inaction." People v. Price, 14 NY3d 61, 64 (2010). In Price, the People abandoned an attempted disseminating indecent material to minors in the first degree prosecution of Defendant Price due to the Second Department's holding that a defendant could not be convicted if the communications did not include images. See, People v. Kozlow, 31 AD3d 788 (2nd Dept. 2006). However, nearly six months later, on April 26, 2007, the Court of Appeals reversed the Second Department and ruled that a defendant could be prosecuted under the relevant statute even though his communications contained no nude or sexual images. See, People v. Kozlow, 8 NY3d 554 (2007). When Defendant Price was arraigned on an indictment more than 16 months after he was initially arraigned on the felony complaint, the People asserted that the prosecution was not time-barred due to the "exceptional circumstance[]" of the change in law resulting from the Court of Appeals' Kozlow decision. In affirming Defendant Price's §30.30 dismissal, the Price Court explained that the "fact that a particular ruling may be erroneous does not by itself transform that ruling into an exceptional circumstance,'" for purposes of speedy trial calculation. Furthermore, "[l]egal rulings are routine events" in criminal prosecutions. Id at 65 (quoting, People v. Cortes, 80 NY2d 201, 211-212 (1992).
Even if this Court were to allow for 5 days for delivery of the April 10, 2014 Disposition
Report, the People remain chargeable with 62 days of the 70 days at issue and these
charges remain timebarred.
Here, in contrast to the facts of Price, there is even a stronger argument that City Court's
legal error is not an "exceptional circumstance." In this prosecution, the People remained in complete control of the felony complaints that remained legally pending, as the conference judge's erroneous dismissal had no legal effect. This nullity was not in any way an impediment to proceeding, and as Defense counsel correctly pointed out, a mere ex-parte telephone call was all that was required to undo the erroneous deed, which being a nullity need not have been undone. While this set of facts may be unusual, it is certainly not exceptional. CPL §30.30(4)(g).
There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.- Hamlet (Act 1, Scene 5), Hamlet to HoratioThe two counts of Criminal Possession of a Forged Instrument in the Third Degree are DISMISSED pursuant to CPL §30.30(1)(a).This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision. A seal pursuant to CPL §160.50 will be entered at the conclusion of thirty (30) days.
DATED: May 19, 2015
_s/____________________
SCOTT A. MILLER
Ithaca City Court Judge