Opinion
No. 63515C2011.
2012-06-4
The PEOPLE of the State of New York v. Kenneth GOSHORN, Defendant.
Decision and Order
, J.
Two questions are addressed in this decision, one substantive and one procedural. They are also largely rhetorical, given the clearly worded controlling statutes and the mountain of binding legal authority. First, must a misdemeanor pleading charging a defendant only with resisting arrest [PL § 205.30] contain objective facts that enable the court reviewing the accusatory instrument for facial sufficiency to determine whether the arrest allegedly resisted was legally authorized? Second, must a motion seeking to dismiss such an accusatory instrument for facial insufficiency be made in writing? The answers to these questions are painfully obvious—yes and yes.
Defendant was arrested more than six months ago, apparently after the police responded to a call for help from a residence regarding a domestic dispute. The sole charge is resisting arrest. In the factual portion of the pleading, the arresting officer states that “upon attempting to arrest the defendant for criminal mischief in the fourth degree, the defendant did resist arrest in that he pulled his hands away and flailed his arms, refusing to be handcuffed.” No other facts are pled.
Defendant was arraigned on this instrument on November 25, 2011. The minutes show that the arraignment judge, sua sponte, asked the People whether they could tell him whether they had any facts about the probable cause for the arrest. The prosecutor responded, “It's the People's information that the underlying cause for this arrest was that the defendant and his girlfriend, or significant other, did have an argument, and ... the defendant actually broke a mirror, causing glass to shatter all over the apartment. Ultimately, the complaining witness did not want to go forward, but that was the underlying reason.” The judge responded, “I think that has to be put in the complaint factually in some fashion, other than the conclusion of criminal mischief, but that's okay.” Defendant made no application of any kind. The People stated “ready” for trial.
On the next court date, January 5, 2012, defense counsel told the judge presiding that day, the Honorable Colleen Duffy, that the case was on for “redraft. It was deemed facially insufficient by a judge in arraignments.” The People said they believed the accusatory instrument was a legally sufficient information, and “request[ed] that any facially insufficient motion by defense be made in writing so the People can respond.” Counsel replied, “It was granted in arraignments at the time, which was actually statutorily appropriate to make it orally. I don't see why we should write ...” The prosecutor interrupted counsel, stating, “The People don't have a note that it was granted.” Justice Duffy stated, “I just have a note to join the open case.” Counsel challenged the judge, stating, “I'm happy to order the minutes.” Justice Duffy said, “All right, I don't have an indication. It just says “join.” Justice Duffy reviewed the accusatory instrument upon request of counsel, and said, “I think the People need to file a superseding to set forth what the basis for the lawful arrest was.” The prosecutor responded, “Yes, your honor.” The case was adjourned, at defense request, for three months. The judge ended the record by suggesting the People “file the superseding.”
On April 5, 2012, the case appeared before this Court. Defense counsel indicated, in substance, that two prior judges had ruled the information was facially insufficient, ordered the People to file a superseding information, and that the case was on for dismissal. No marking on the Court file indicated the case was on for dismissal that day; Justice Duffy did write, “People must file superseding to allege basis of arrest.” This Court reviewed the accusatory instrument and came to its own independent conclusion: without facts in the pleading demonstrating the legal basis for the arrest allegedly resisted, the information was facially insufficient. Defense counsel had not filed a written motion to dismiss, and orally argued that the case should be dismissed pursuant to CPL § 30 .30, as more than ninety days had passed since the arraignment. The People once again demanded the motion to dismiss be made in writing. The Court, over the People's objection, conditionally dismissed the case on the procedurally insufficient oral application, and stayed the order for thirty days. The Court indicated the basis for its belief that the accusatory instrument was facially insufficient, and told the People that if, upon review, they believed they had a meritorious legal argument to the contrary, the Court would require the question be litigated on written motion.
On May 4, 2002, the People demanded that the application to dismiss be made in writing. The People stated, in substance, that the supervisor of the complaint room had approved this accusatory instrument. The Court rescinded its provisional dismissal order, and directed defendant to comply with the statute and file a written motion.
When assigned to the arraignment part on the weekend of May 19, 2012, this Court personally observed two other complaints charging defendants only with resisting arrest which did not contain any facts from which the Court could determine whether the arrest itself was supported by probable cause. This is clearly not an isolated situation.
In a sworn affirmation in support of the motion, counsel states that “[o]n November 25, 2011, at the defendant's arraignment, defense counsel argued that the accusatory instrument was facially insufficient as it failed to allege any facts to support the unlawfullness of the underlying arrest ... The court agreed with defense counsel, deemed the complaint insufficient, but granted the prosecution leave to file a superseding information.” In the same affirmation, counsel states “[o]n January 5, 2012 ... Judge Colleen Duffy again deemed the complaint insufficient and directed the People to supersede or dismiss on the next court date.” In the affirmation, counsel questions the People's “refus[al] to concede that their statutory time pursuant to CPL § 30.30 had passed” during the oral application to dismiss, and chides the People for not offering “lawful grounds” for challenging the provisional dismissal order, “nor [give] any explanation ... for ... fail[ing] to comply with the prior Justice's directives to supersede or dismiss.”
Counsel's inaccurate representations about what applications and legal rulings were made prior to this Court's involvement in this case are troubling in and of themselves. If they are to be read as strong advocacy arguments, they underscore a pervasive misapprehension about the need to have written applications to dismiss an accusatory instrument absent agreement of the People, as well as what power a judge can exercise on an oral application. Each judge involved did as much as the Criminal Procedure Law allows absent a written motion.
When a defendant is arrested without a warrant, and an accusatory instrument is drafted, the arraignment judge has the responsibility of ensuring that the pleading is “sufficient on its face, as prescribed in [CPL] section 100.40,” even in the absence of any oral defense application. CPL § 140.45. See generally People v. Machado, 182 Misc.2d 194 (Crim Ct Bronx Cty 1999). This is not a facial sufficiency determination directed to all parts of the accusatory instrument. Under this section of the Criminal Procedure Law, the judge must determine whether sufficient facts are presented to determine the existence of “reasonable cause to believe that the defendant committed the offense charged.” Id. The arraignment court may not dismiss a case on any other ground at this stage based on any oral application. The arraignment judge may express his or her opinion about whether there is uncorroborated hearsay, or some other pleading deficiency, but those are not considered binding legal rulings because they do not relate to this section of the Criminal Procedure Law. Where the accusatory instrument itself does not contain facts that establish “reasonable cause” existed for the arrest, the arraignment judge has no authority to curtail the defendant's liberty, and must dismiss the accusatory instrument; this is even true if the accusatory instrument is a felony complaint. See Matter of Fitzpatrick v. Rosenthal, 29 AD3d 24, 30–31 (4th Dept 2006). An order dismissing a case pursuant to CPL § 140.45 is not subject to appeal by the People. People v. Hernandez, 98 N.Y.2d 8 (2002). However, if the arraignment judge is satisfied that “sufficient facts exist ... to draw and file an accusatory instrument that is sufficient on its face,” the judge may not dismiss the case, but must instead allow the prosecution to proceed and permit the People to draft a sufficient accusatory instrument. CPL § 140.45; Cf. People v. Gonzalez, 184 Misc.2d 262, 264 (App Term 1st Dept 2000).
Here, the arraignment judge performed the requisite inquiry on his own. Recognizing that the accusatory instrument did not state any facts from which the judge could determine whether the police had probable cause to arrest defendant for criminal mischief, or any other crime, he simply asked the People if they had such facts. The judger learned that sufficient facts existed to find probable cause to arrest defendant for criminal mischief. The arraignment court had no power to dismiss the case. Defendant made no application for this, or any other relief. The judge advised the People to put the facts they related about the basis for the arrest in a new accusatory instrument.
Although it was clear the People chose not to follow that advice, defendant made no written application to dismiss the case prior to the next court date. Justice Duffy therefore also had no power to dismiss the case based on any oral application, or to order the People to dismiss the case. Like the arraignment judge, Justice Duffy did what appropriate: she inspected the information, advised the People of her belief that the accusatory instrument lacked a sufficient factual basis for her to find that the police officer had reasonable cause to make an authorized arrest, and advised the People to supersede the information. Once again, the People chose not to do so.
Although more than ninety days passed before the case was again heard, defendant still did not file a written motion to dismiss the case. This Court entertained defendant's oral application, and advised the People of its intention to dismiss the case on facial sufficiency and “speedy trial” grounds. see People v. Cook, 193 A.D.2d 366, 369 –70 (1st Dept 1993. The People did not have to acquiesce or give any oral response, and this Court had no power to issue a binding ruling unless the People unequivocally failed to object to this procedure. See People v. Mezon, 80 N.Y.2d 155, 160 (1992); People v. Jennings, 69 N.Y.2d 103, 113 (1986); People v. Lawrence, 64 N.Y.2d 200, 206–07(1984). Ultimately, the People chose not to waive their statutory right to a written motion. Cook, 193 A.D.2d 369–70. This is the law, and no other procedure is legally appropriate in this situation. Dismissal of a case without a written motion is automatically subject to reversal. (CITE)
In terms of the merits of the People's position, there simply are none. The People argue that they do not need to plead facts which would permit a court to make a determination about whether a legitimate basis existed to arrest a defendant where the crime charged is resisting arrest. They claim that as long as they say in their pleading that the “officers, at the time of the defendant's arrest, had grounds to believe the defendant was committing or had committed an offense,” the accusatory instrument would be facially sufficient to support a judicial determination that the arrest was based upon probable cause. To credit this argument, this Court would essentially have to overrule People v. Alejandro, 70 N.Y.2d 133 (1987), in which the Court of Appeals held that an accusatory instrument charging a defendant with resisting arrest must contain facts establishing the arrest allegedly resisted was authorized. Not only is this Court bound by that decision, but it also completely agrees with it.
In order to be guilty of resisting arrest, the People must prove that the defendant “intentionally ... attempted to prevent a ... police officer from effecting an authorized arrest of himself.” [PL § 205.30]. An “authorized arrest” is one which is supported by probable cause. Alejandro, 70 N.Y.2d at 135. Therefore, a pleading charging a defendant with resisting arrest is facially sufficient only where facts in the pleading itself allow the Court to independently determine that reasonable cause existed for the arrest which the defendant is accused of resisting. See e .g. People v. Jones, 9 NY3d 259, 263 (2007); Alejandro, 70 N.Y.2d at 135;People v. Sosa, 193 Misc.3d 306, 308 (Poughkeepsie City Court 2002); People v. Stephen, 153 Misc.2d 382, 390–91 (Crim Ct N.Y. Cty 1992); People v. Ailey, 76 Misc.2d 589 (Buffalo City Ct 1974). Contrary to the People's strained argument, this does not force them to also charge the underlying substantive crime in order to have a facially sufficient pleading charging resisting arrest. Although in many cases the substantive crime is charged, resisting arrest is a wholly separate crime, and may be charged alone when reasonable cause exists to make a lawful arrest, but, for whatever reason, the underlying crime is not charged. In a pleading where the only charge is resisting arrest, the accusatory instrument itself must contain legally sufficient, fact-based “allegations establishing that the arresting officer had probable cause to believe that some offense was committed.” People v. Frederique, 31 Misc.3d 1215A (Dist Ct Nassau Cty 2011) (citing People v. Richardson, 30 Misc.2d 1204A (Crim Ct N.Y. Cty 2010)); see also Matter of Fitzpatrick v. Rosenthal, 29 AD3d at 26 (accusatory instrument alleging probable cause to charge defendant with crime based on unspecified “eyewitness accounts” not sufficient). This is no different than what is required in any pleading charging any offense; the probable cause for the commission of all elements of the offense must be contained in the accusatory instrument. (CITE). Where insufficient facts are pled in an accusatory instrument to show that the underlying arrest was authorized, a pleading charging resisting arrest is jurisdictionally defective. Alejandro, 70 N.Y.2d at 135.
An examination of the four corners of the accusatory instrument reveals no factual basis for an authorized arrest in this case. While the officer alleges that he was “attempting” to arrest defendant for fourth degree “criminal mischief,” the Court cannot determine whether the officer was authorized to arrest defendant for that crime, or any other crime for that matter. The People argue that the insertion of the words “criminal mischief” into this pleading somehow makes it different from the pleading long-ago held to be insufficient in Alejandro, 70 N.Y.2d at 135, because that pleading merely said that the officers were in the process of making an “authorized arrest” when the defendant pulled her arms away, but never specified the name of the crime. This is not only a distinction without a semblance of a difference, but it is frivolous. Upon review, it is the Court which must determine whether reasonable cause existed for each and every element of an offense charged, and an “authorized arrest” is an element of the crime of resisting arrest. (Cite) The Court has no basis to credit the officer's conclusory statement that he had probable cause to arrest defendant for criminal mischief in the fourth degree any more than it would to credit conclusory language in any pleading that, based on facts known only to the officer, a defendant committed the crime charged. See People v. Alessi, 159 Misc.2d 828, 831 (Justice Ct Monroe Cty 1993); Cf. People v. Rodriguez, 140 Misc.2d 1, 5–6 (Crim Ct N.Y. Cty 1988).
Remarkably, the People also ask this Court to also find this accusatory instrument sufficient under the minimal pleading requirements of People v. Casey, 95 N.Y.2d 345, 360 (2000). What they fail to do is explain how this pleading contains “factual allegations [which] ... give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” Id. Saying that the officer had reason to arrest defendant for criminal mischief in the fourth degree does not satisfy this requirement, as the People opine. That crime is defined in subsections one through four of Penal Law § 145.00, and each subsection has vastly different elements. Probable cause to arrest someone for the commission of this crime could be established by any number of different factual scenarios. In this pleading, defendant, as well as the Court, can only guess what the officer knew and what criminal mischief crime was allegedly committed. If the People cannot satisfy even the Casey test, their pleading has to be woefully insufficient..
The fact that the arraignment judge was satisfied that the officer had reasonable cause to make an authorized arrest for criminal mischief under Penal Law § 145.00(1) does not permit this complaint to withstand a motion to dismiss. The defendant may have been on verbal notice of the probable cause allegations, but these allegations were never memorialized in a sworn pleading. A determination of facial sufficiency must only be made by examining the accusatory instrument itself. The People chose never to supersede it with the facts they had at their disposal, even though two judges advised them to do just that and the pleading would be fine.
Even if defendant and the woman who called the police were legally married, there would still be probable cause to arrest the defendant. People v. Brown, 185 Misc.2d 326.
In their own misapprehension of law regarding the sufficiency of pleadings, the People argue that they are unable to draft a sufficient accusatory instrument for resisting arrest in this, or any other case, where the victim of a crime decides not to sign a sworn statement attesting to the reasons for the arrest. They believe that if they included what the officer had been told by the victim in this accusatory instrument, it would be facially insufficient because it would contain uncorroborated hearsay. Curiously, even defendant does not make such an argument. He has never said anything other than that the People need to plead facts showing that the officer possessed a legal basis for arresting him. That legal basis apparently rests, in part, upon statements made by the defendant's wife or significant other that he broke her mirror and had no right to do so. It also apparently rests on the officer's observations that there was a broken mirror at the scene, and there was glass all over the apartment. Taking the People's belief to its logical conclusion, they could never prove defendant guilty of this crime at trial because the legal basis for the arrest, an element of the crime to be established beyond a reasonable doubt would rest on inadmissible hearsay testimony. And that's just plain wrong.
True, a misdemeanor information must contain facts of a “non-hearsay” nature establishing elements of a crime. But legally sufficient pleadings routinely contain all types of hearsay. Defendant's statements are included many times to establish an element of a crime. Even statements made by crime victims, heard only by police officers and never attested to having been made by the victim, may be included in an accusatory instrument to support an element of a crime charged. See e.g People v. Foster, 190 Misc.2d 625, 638–30 (Crim Ct Kings Cty 2002) (excited utterance of assault victim made to police officer sufficient without corroborating affidavit from victim). In this case, the statements made by the alleged victim to the officer which provided some of the probable cause for the arrest would not even be considered hearsay. It is hornbook law that hearsay is an out of court statement put forth for the truth of the matter asserted. Alexander, Evidence in New York State and Federal Courts, § 8:1 (West 2001); People v. Nieves, 67 NY2s 125, 131 (1986). Where an officer relies on statements made by a purported crime victim to justify an arrest, the statements are not included in an accusatory instrument for their truth at all. Not only is this basic evidence, but it is also memorialized in binding appellate law. In People v. Thomas, 4 NY3d 143, 148 (2005), the Court of Appeals held that an information charging resisting arrest was not “defective because it relied on hearsay statements attributed to the victim,” since the hearsay statements were “not used to prove that victim's assertion was true but to demonstrate that there was reasonable cause to arrest defendant.” Id. (citing People v. Huertas, 75 N.Y.2d 487, 492 [1990] and People v. Felder, 37 N.Y.2d 779, 780–81 [1975] ).
Unfortunately, in choosing to disregard the advice of two judges to supersede this information with facts known to the arresting officer about the basis of the arrest for criminal mischief, the People have not only left this Court with no recourse other than to dismiss the information on facial insufficiency grounds, but it also now must dismiss the case on “speedy trial” grounds. One hundred twenty seven days elapsed between defendant's arraignment and the adjournment ordered to litigate this application on written motion. Resisting arrest is a Class A misdemeanor, and the People have ninety days from the arraignment to state ready for trial. Although they did state ready on the very day of the arraignment, since the accusatory instrument itself is facially insufficient, that statement of readiness was illusory. See People v. Case, 42 N.Y.2d 98, 99–100 (1977); People v. Caussade, 162 A.D.2d 4, 8 (2nd Dept 1990). Accordingly, defendant's written motion to dismiss the case pursuant to CPL 30.30 is granted as well.
This constitutes the Decision and Order of the Court.