Rule 48, N.D.R.Crim.P., states, "[t]he court may dismiss an indictment, information or complaint . . .[,]" and gives the court authority to dismiss an information or complaint if the prosecution unnecessarily delays filing the information or complaint; however, it requires that an actual indictment, information, or complaint is filed before the rule can be applied. Cf. People v. Fysekis, 164 Misc.2d 627, 625 N.Y.S.2d 861, 865 (1995) (no basis to dismiss an action where there is no accusatory instrument before the court). The prosecution has discretion in deciding whether a criminal charge is proper and whether to initiate prosecution.
50 (1) of the CPL requires that an accusatory instrument be filed with the court at or before the return date of the appearance ticket, the statute does not impose any penalty upon the People for their failure to comply with said requirement. As a result, an aggrieved defendant has no available recourse other than, in the instances where defendant appeared on the return date, to start the clock running for speedy trial purposes ( People v. Stirrup, 91 NY2d 434; see also People v. Han, 166 Misc 246, 248; People v. Fysekis, 164 Misc 2d 627, 630; People v. Consolidated Edison Co. of N.Y., 153 Misc 2d 595; People v. D'Alessio, 134 Misc 2d 1005, 1009; contra People v. Consolidated Edison Co., 161 Misc 2d 907; People v. Consolidated Edison Co., 159 Misc 2d 354). Furthermore, it should be noted that, as defendant's counsel concedes, defendant received notice prior to the return date that the matter was adjourned and that the People filed the accusatory instruments before the adjourned date.
First, to the extent that it depends on defendant's assertion that the appearance ticket was filed on August 6, 1997, it fails because the record clearly establishes it was not filed until August 7, 1997 at 11:55 P.M. Second, formal criminal proceedings are commenced by the filing of an accusatory instrument (see, People v. Stirrup, 91 N.Y.2d 434, 438), which an appearance ticket is not (see, CPL 1.20, [26]; see also, People v. Fysekis, 164 Misc.2d 627, 629).
It does not confer upon the court jurisdiction over a defendant, until an accusatory instrument is filed by the issuing person (see People v. Ashkinadze, 167 Misc.2d 80 [Kings Cty.Crim. Ct.1995] ). Indeed, a Court may not issue a summons or a warrant of arrest to compel a defendant's appearance, until an accusatory instrument is filed with the Court (see People v. Fysekis, 164 Misc.2d 627 [Bronx Cty. Crim Ct.1995] ). The commencement of a criminal action is "by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed" (see CPL § 1.20[17] ).
Moreover, given that the clerk officially accepted only the more formal accusatory instrument for filing, and given Defendant's concession that the clerk caused that more formal accusatory instrument to be handed to him at arraignment, it is virtually impossible that it was nonetheless the simplified traffic information that the clerk delivered to the court for the purpose of conducting the arraignment. Since it is thus clear that Defendant has not been arraigned on the simplified traffic information, I cannot entertain a motion to dismiss it ( seeCPL 170.30[1], see alsoCPL 1.20[9]; cf People v. Fysekis, 164 Misc.2d 627, 625 N.Y.S.2d 861 [Crim Ct, Bronx County, 1995, Enten, J.] ). Under the circumstances, I simply deem it a nullity.
It has no inherent equity powers beyond those specifically provided for in the Criminal Procedure Law. ( See People v Fysekis, 164 Misc.2d 627, 628 [Crim Ct, Bronx County 1995] [criminal courts do not possess any inherent equity powers and thus are not authorized to declare desk appearance tickets null and void]; People v Salzone, 98 Misc.2d 131 [Crim Ct, Kings County 1978] [criminal court lacks equity jurisdiction to order property clerk to return funds taken from plaintiff on his arrest on gambling charges that were subsequently dismissed]).
It has no inherent equity powers beyond those specifically provided for in the Criminal Procedure Law. (See People v Fysekis, 164 Misc 2d 627, 628 [Crim Ct, Bronx County 1995] [criminal courts do not possess any inherent equity powers and thus are not authorized to declare desk appearance tickets null and void]; People v Salzone, 98 Misc 2d 131 [Crim Ct, Kings County 1978] [criminal court lacks equity jurisdiction to order property clerk to return funds taken from plaintiff on his arrest on gambling charges that were subsequently dismissed].) With respect to civil matters, jurisdiction is vested exclusively in the Civil Court of the City of New York (NY Const, art VI, § 15 [b]), or in the Civil Term of the Supreme Court (NY Const, art VI, § 7). It is in those courts, and not in this court, that a common-law action for replevin may be commenced upon the termination of the criminal action.
Nor may a Criminal Court bar further compulsory process or the filing of an accusatory instrument against an accused because an appearance ticket employed to secure the defendant's presence was defective or never served. (People v Fysekis, 164 Misc.2d 627, 628-629 [Crim Ct, Bronx County 1995]; People v Gross, 148 Misc.2d, supra, at 239.) Employment of this device here, in however defective a manner, does not diminish the issuing authority's power to arrest defendant for the offenses charged.
As this court stated previously in People v Henrique (NYLJ, July 7, 1994, at 29, col 4 [Crim Ct, N Y County]), there appears to be nothing to dismiss prior to the filing of an accusatory instrument. (See also, People v Fysekis, 164 Misc.2d 627 [Crim Ct, Bronx County 1995]); People v D'Alessio, 134 Misc.2d 1005, 1009 [Crim Ct, Richmond County 1986].) 2. CPL 150.50
A court acquires in personam jurisdiction by the filing of an accusatory instrument and defendant's arraignment on that instrument. (People v Grant, 16 N.Y.2d 722, 723, cert denied 382 U.S. 975; People v Fysekis, 164 Misc.2d 627 [Crim Ct, N Y County 1995]; People v Kwan Han, supra; People v Goldberg, supra.) However, even assuming that the court would have personal jurisdiction, the fact remains that the People's own procedure prevents a defendant from entering AR-2 in order to announce his appearance.