Opinion
05060048.
Decided July 26, 2006.
DWIGHT D. KRAEMER, ESQ. Village Attorney and Prosecutor Westbury, NY, FOR THE VILLAGE.
JASPAN SCHLESINGER HOFFMAN LLP, BY: CHRIS J. COSCHIGNANO, ESQ., Attorneys for Defendant, Garden City, NY, FOR THE DEFENDANT.
The defendant was arraigned on July 14, 2005 and filed motions to dismiss on June 21, 2006. In the interim there were approximately seven appearances and each adjournment was granted and charged to the defendant. People v. Joseph Vancol, 166 Misc 2d 93, 631 NYS2d 996 (1995) NY Misc. LEXIS 423, July 19, 1995, Decided. The defendant always appeared pro se except now they have filed a motion with the aid of counsel. They have not requested additional time to file their motions and the 45 days from arraignment allowed by statute for that purpose has long since passed. The defendant has failed to offer any excuse or reason for the delay. The People have submitted papers in opposition alleging that the motion should be "dismissed." The Court takes from this unusual request by the People that they would like this Court to not consider the motion at all because it is untimely. Ordinarily the nomenclature used is to ask the Court to deny whatever motion is being made. Mr. Kraemer, the Prosecutor, has suggested that that language would imply that he would acquiesce to a determination on the merits of the motion. Clearly, that is not his wish. The defendant has not replied to the prosecution's affirmation in opposition. Similarly, the defendant never filed a notice of demand or a demand for a bill of particulars under Article 240 of the Criminal Procedure Law. For the reasons stated hereinafter, the Court is inclined to agree with the prosecution and dismiss the motion as untimely pursuant to C.P.L. § 255(3) without reaching the merits, if any, of the defendant's applications.
C.P.L. § 255(3) provides that the Court in its discretion may extend the time for the defendant to file its motions. Ordinarily this Court, even sua sponte, liberally grants such a request. See People v. Beauvil, The Magistrate, Spring, 2004, Vol. 44, No. 1 at 22 and 23. In this instance, it has taken the defendant nearly a year to make a motion. In doing so, it is apparently oblivious to C.P.L. § 255(2) even though this has been raised as an issue by the People. Under what circumstances should a Court exercise its discretion and permit a defendant to file a motion out of time? While not set forth by statute this Court is of the opinion that the time to file motions in a criminal case should be extended after considering the following criteria:
What is the reason or excuse provided by the defendant for non-compliance with the 45 day rule for the making of motions in criminal cases? No reason or excuse was offered in this case. This Court finds that if not good cause, the defendant must show some cause for not filing motions in a timely fashion. Indeed, the defendant at one point during the pendency of the proceeding indicated that they had applied for a variance and thus might have received a stay of this proceeding pending the outcome of that application. In his motion papers defense counsel also advances that same issue without attaching to his papers an affidavit from someone with actual knowledge of these and other facts. The People have specifically stated in their papers that a variance application was not filed.
Is a crime alleged? This Court has no jurisdiction over misdemeanor or felonies. People v. Ventura, State Reporter Ref. No. QXK000666 (edited for publication); New York Law Journal, May 25, 2004 at 1, 17, 19 20. Defense counsel stated in an affirmation in support of his motion: "The defendant is charged in the above-entitled informations with the crimes of . . ." Defense counsel is mistaken. While Village Courts are Local Criminal Courts, the Village has not alleged the commission of crimes in this case. See Morris, et al., " Village, Town and District Courts in New York", Practice Guide, Lawyers Cooperative Publishing Company, Rochester, New York (now West Group, St. Paul, Minnesota 1995-Present). If this were another court with jurisdiction over crimes then the court might feel compelled to consider how a dismissal of the defendant's motion would effect its right to defend and avoid jail and a criminal record. But these are non-issues in this case, before this Village Court. The defendant here is charged with Building Code and Zoning violations.
Does the motion suggest a meritorious defense or issue or a likelihood of success on the merits of the motion? The defendant has made no such showing. Indeed, the defendant's motion is arguably frivolous. See Part 130-1, Standards and Administrative Policies, Rules of the Chief Administrator. The defendant has not offered an affidavit of merit or anything that would even remotely suggest the possibility of success on the motion.
Is the defendant indigent, unable to afford counsel, or were there language cultural or other barriers that may have prevented the defendant from understanding its rights? The Court does not see a showing of any facts here that suggest that.
See People v. Suppa, October 8, 1997, New York Law Journal at 1, 25 and 28 where this Court had its decision translated into Italian, French and Spanish and circulated throughout the community so that residents would be made aware of the Village's Local Laws regarding Building Code and Zoning violations.
The prejudice, if any, to the prosecution in granting the motion and the prejudice, if any, to the defense in not granting it, should be considered. The prejudice to the prosecution here is measured by the expensive and protracted delay caused by the defendant's repeated requests to adjourn without making a motion in one (1) year. The case has to be carried on the calendar; witnesses must be on standby; the prosecution must respond to an untimely motion which incurs legal time and expense; and, residents perhaps adversely effected by the alleged violations must await a disposition and trial before enforcement and fines may occur. Motion practice should not be considered an opportunity to delay what may be an inevitable outcome. Motion practice should be pursued with a meritorious purpose in mind and not as a "make work" initiative for the prosecution and the Court or a way to simply justify legal fees on the part of the defense.
C.P.L. § 255.20(3) in relevant part provides:
Any other pretrial motion made after the forty-five day period may be summarily denied but the Court, in the interest of justice, and for good cause shown may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.
The defendant has not provided a return date on his motion, exhibits, affidavits or a memoranda of law in support of his motion. See C.P.L. § 255.20(2). Professor Peter Preiser in his Practice Commentaries in McKinney's Consolidated Laws of New York Annotated following the above section provides:
"Failure to comply with the time limit will result in a waiver of any ground that could have been raised, other than one that goes to the jurisdiction of the court. Thus the waiver even extends to a motion to dismiss the indictment based upon the bar of the statute of limitations (see People v. Falcon, 231 AD2d 368, 722 NYS2d 538 [1st Dept. 2001]; People v. DePillo, 168 AD2d 899, 565 NYS2d 650 [4th Dept. 1990], appeal denied, 78 NY2d 965, 574 NYS2d 944, 580 NE2d 416). There are, however, escape hatches in the form of the court's authority to extend the forty-five day period upon application of the defendant (see subd. 1) and for good cause shown to entertain and dispose of a motion not made within the period (subd. 3). Nevertheless, it would be extremely unwise to neglect the time requirement: relief is within the discretion of the court and will not be granted automatically."
Professor Preiser's cautionary analysis is based upon stare decisis and well established judicial interpretations of C.P.L. § 255.20. See also People v. Farrell, 1982, 58 NY2d 637, 458 NYS2d 514, 444 NE2d 978; People v. Begg, (3rd Dept 1985) 109 AD2d 912, 486 NYS2d 380; People v. Kehn (3rd Dept. 1985) 109 AD2d 912, 486 NYS2d 380; People v. Colon (2nd Dept. 1987) 127 AD2d 678, 511 NYS2d 674, appeal granted 69 NY2d 1002, 517 NYS2d 1035, 511 N.E.2D 94, affirmed 71 NY2d 410, 526 NYS2d 932, 521 NE2d 1075, certiorari denied 108 S.Ct. 2911, 487 U.S. 1239, 101 L.Ed.2d 943; People v. Dean, 1989, 74 NY2d 643, 542 NYS2d 512, 540 NE2d 707; People v. Field (2nd Dept. 1990) 161 AD2d 660, 555 NYS2d 437; People v. Moskowitz (2nd Dept. 1992) 186 AD2d 572, 588 NYS2d 582, leave to appeal denied 83 NY2d 799, 611 NYS2d 131, 633 NE2d 486; People v. Ramos, 1994, 162 Misc 2d 745, 622 NYS2d 859; People v. Molling (4th Dept. 1997) 238 AD2d 915, 661 NYS2d 129; and People v. Augustine (3rd Dept. 1997) 235 AD2d 915, 654 NYS2d 179, appeal dismissed 89 NY2d 1072, 659 NYS2d 850, 681 NE2d 1297, appeal denied 89 NY2d 1088, 660 NYS2d 381, 682 NE2d 982.
The Court should consider whether the defendant has presented a constitutional question or one of law that overrides a procedural default. See People v. Spadaro, 104 Misc 2d 997, 429 NYS2d 855 (1980); People v. Coleman, 114 Misc 2d 685, 452 NYS2d 503 (1982); People v. Barnwell, 143 Misc 2d 922, 541 NYS2d 664 (1989); People v. Gonzales, 148 Misc 2d 973, 561 NYS2d 358 (1990); and People v. Amadeo, 188 Misc 2d 187, 727 NYS2d 290 (2001). See also, Amendment VI, United States Constitution.
The defendant has not alleged a denial of a fundamental constitutional right. The defendant has obliquely referenced the fact that it is a religious organization and presumably that they should be immune to prosecution on First Amendment or some other grounds.
C.P.L. § 170.40 and Clayton Motion
The defendant has also filed a motion to dismiss in the furtherance of justice. This is a so-called Clayton motion under C.P.L. § 170.40. See People v. Clayton, 41 AD2d 204, 342 NYS2d 106 (2nd Dept. 1973). Yet, the defendant has in no way complied with the enumerated paragraphs of § 170.40.
Lastly, this Court established a briefing and motion schedule wherein the defendant was to submit a final reply, if any, by July 21, 2006. The Court's file jacket marked with this Justice's notation shows that the date is marked "final" and peremptorily against the defendant. As this decision was being finalized the defendant hand delivered the reply to Village Court on July 25, 2006, four (4) days late and once again did not ask for leave to file their papers out of time. These reply papers are not being considered by this Court in reaching this decision.
For the reasons set forth herein the Court dismisses the motion with prejudice and the Clerk of the Court is directed to fix a trial date and advise the parties of same.
"With prejudice" in this context means that the defendant is precluded from making another pre-trial motion for discovery, suppression or to dismiss. They are not precluded at the time of trial from making motions in limine, if appropriate, or a Trial Order of Dismissal (T.O.D.) Motion at the close of the People's case or any other trial motions that are timely and relevant. Further, the designation "with prejudice" does not relieve the prosecution of its ongoing responsibilities under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 NY2d 286 (1961).