Opinion
2016SN016966
09-19-2016
The People of the State of New York v. Arminca Jeffreys, Defendant
On March 7, 2016, defendant was issued a summons by a New York City Police Department ("NYPD") Captain which directed her to appear in Criminal Court on May 11, 2016. Defendant is charged with a violation of New York City Traffic Rules § 4-03[c][3].
On May 11, 2016, defendant appeared in the SAP2 Part and refused to consent to having her case presided over by a Judicial Hearing Officer ("JHO"). The court adjourned the case to June 14, 2016. On June 14, 2016, defendant appeared in BTP1 Part along with a prosecutor from NYPD and, because defendant refused to consent having her case presided over by a JHO, the court adjourned the case to Part B on July 19, 2016.
By Notice of Motion served and filed on June 13, 2016, defendant moved to dismiss the charge upon the ground of selective prosecution, to preclude NYPD as the prosecutor, to dismiss the charge because prosecution by summons instead of Desk Appearance Ticket violates equal protection, and for various other relief. NYPD served and filed their response June 29, 2016, and defendant served and filed a reply on July 7, 2016 and a supplemental reply on July 11, 2016. The District Attorney of New York County served and filed a Notice of Motion on September 9, 2016. By papers served and filed on September 15, 2016, the defendant objected to District Attorney's papers being accepted .
Motion to Preclude NYPD as Prosecutor
Defendant's motion to preclude NYPD from acting as a prosecutor is denied. District attorneys are legally permitted to delegate the prosecution of petty crimes or offenses so long as the district attorney is informed of all the criminal prosecutions in the county (see People v Soddano, 86 NY2d 727 [1995]; People v DeLeyden, 10 NY2d 293 [1961]; People v Czajka, 11 NY2d 253 [1962]; People v Leombruno, 10 NY2d 900 [1961]; Matter of Sedore v Epstein, 56 AD3d 60 [2nd Dept 2008]).
Furthermore, this court finds no impermissible conflict of interest in NYPD appearing to prosecute this matter when one of their officers is the witness (see People v Soddano, 86 NY2d 727 [1995] [trial of speeding ticket by complainant officer permissible]; People v DeLeyden, 10 NY2d 293 [1961] [prosecution by sheriff who made the speeding charge permissible]; cf. People v Zimmer, 51 NY2d 382 [1980]; People v Adams 20 NY3d 608 [2013] [conviction vacated where complainant was a sitting judge presiding over cases prosecuted by district attorney who obtained the trial conviction]). The February 24, 2016 Memorandum of Understanding between The District Attorney of New York County and the New York City Police Department describes a permissible delegation of authority, and this court finds no impermissible conflict of interest.
Motion to Dismiss due to Selective Prosecution and Violation of Equal Protection
Defendant claims that NYPD has singled her out from other protestors and that being issued a summons instead of a Desk Appearance Ticket ("DAT") violated her constitutional rights.
For a court to say a defendant has been selectively prosecuted, the defendant must overcome the presumption that the decision to prosecute her was made in good faith and without discrimination (see United States v Saade, 652 F2d 1126 [1981]; Matter of 303 W 42nd St Corp v Klein, 46 NY2d 686 [1979]). A hearing may be warranted when the defendant submits prima facie evidence that displays a strong likelihood of success on the merits and a strong showing of intentional discriminatory enforcement (Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d at 695; Matter of Di Maggio v Brown, 19 NY2d 283 [1967]). However, a mere showing of selective enforcement or non-enforcement against others similarly situated will not suffice ( see Matter of Di Maggio v Brown, 19 NY2d at 291). Here, defendant has not met her burden of showing selective enforcement and therefore her motion to dismiss is denied without the need for a hearing.
Furthermore, the fact that defendant was issued a summons and not a DAT has not violated her right to equal protection under the law. Defendant argues that defendants who are issued summons are impermissibly prevented from obtaining discovery and decisions on motions because the cases are presided over by a JHO. Whether NYPD officers issue a summons, a DAT, or bring a defendant in custody directly before a judge is generally within permissible limits of NYPD discretion (see Bryant v City of New York, 404 F3d 128 [2nd Cir 2005]; Atwater v City of Largo Vista, 532 US 318 [2001]). Here, in fact, defendant has obtained discovery, and this case is no longer in front of a JHO. Because defendant has not met her burden of showing an equal protection violation, her motion to dismiss claiming this is denied.
MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERY
Defendant's motion seeking a Bill of Particulars and Discovery is denied as NYPD's response to defendant's request is sufficient at this time.
RESERVATION OF RIGHTS
Defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20[3]. Dated: September 19, 2016 New York, New York ________________________ Guy H. Mitchell Judge of the Criminal Court