Opinion
No. HUTO0182–16.
01-19-2017
PEOPLE of the State of New York v. Alan JOHNSTON, Defendant.
Upon the following papers numbered 1 to 13 read on this motion for omnibus relief to dismiss by defendant by Notice of Motion/Order to Show Cause and supporting papers 1–3, 6 Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 7, 10; Replying Affidavits and supporting papers 11–13; Filed papers 7; Other exhibits: 4, 5, 8, 9; (and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that the pre-trial motion by defendant pro se seeking to dismiss the accusatory instruments, is decided as follows:
I. THE COURT LACKS JURISDICTION:
Defendant contends that the Appearance Tickets were improperly served upon the defendant, thereby depriving the Court of jurisdiction. However, an appearance ticket is not an accusatory instrument and does not give the Court jurisdiction over a defendant (see People v. Lowry, 184 Misc.2d 306 [App. Term 2nd Dept 2000] ; People v. Weinberg, 146 Misc.2d 441 [App. Term 2nd Dept 1990] ). An appearance ticket is used as an alternative to an arrest. It serves only as an invitation or notice to appear at Court and does not commence a criminal action (see People v. Giusti, 176 Misc.2d 377 [Crim. Ct. N.Y.1980] ; see also McKinney's Practice Commentary following CPL § 150.10 ). An improper service of an appearance ticket provides no basis for dismissal of a criminal proceeding for lack of jurisdiction (see People v. MacFarlene Co., 130 Misc.2d 70 [Crim. Ct. N.Y.1985] ).
However, the failure of the People to file an accusatory instrument mandates dismissal of the appearance ticket (Id. ). An appearance ticket is a written notice to appear before a criminal court on a designated date and time to answer for an alleged commission of a violation or a crime. 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] ). Prosecution is based upon the accusatory instruments filed with the Court (see CPL § 150.50 ).
Here, the Court determines that defendant submitted to the jurisdiction of the Court for arraignment on August 31, 2016, where a plea of not guilty was entered for the within pending charges. Therefore, the defendant's jurisdictional arguments are moot (see CPL § 1.20[9] ; CPL § 150.50 ). Accordingly, defendant's motion to dismiss, on this ground, is denied.
II. DISMISSAL FOR SPEEDY TRIAL REASONS:
Defendant seeks an order of dismissal (see CPL § 170.30[e] ), based upon a claimed denial of statutory speedy trial grounds under CPL § 30.30.
The People deny the accrual of any contra speedy trial violations, notwithstanding the time which has elapsed since the filing of an appearance ticket on or about February 26, 2016, through defendant's actual appearance before the Court for arraignment on August 31, 2016; the adjournment to October 26, 2016 for conference, with the submission of the instant motion to dismiss by defendant on this date; and the submission for decision by the Court on January 4, 2017.
Pursuant to CPL § 30.30(1)(d), where a defendant is charged with one or more offenses, at least one of which is a violation and none of which is a crime, as in the instant matters, the People must be ready for trial and declare there readiness within thirty days of commencement of the criminal action.
Any delays or adjournments requested or consented to by the defendant are excludable from the time the People must be ready for trial (see CPL § 30.30 [4 ][b]; People v. Kroha, 262 A.D.2d 583 [2nd Dept 1999], lv. denied 93 N.Y.2d 1021 [1999] ). However, a defendant's mere failure to object to an adjournment does not constitute "consent" under CPL § 30.30(4)(b) (see People v. Liotta, 79 N.Y.2d 841, 843 [1992] ). Adjournments at defendant's request are also excludable even if the People are not ready (see People v. Rodriguez, 2002 WL 31844893 [App. Term, 9th & 10th Jud. Dists.2002] ). Additional excludable periods include "a reasonable period of delay resulting from other proceedings concerning the defendant, including, but not limited to ... pre-trial motions ... and the period during which such matters are under consideration by the court" (see CPL § 30.30[4][a] ).
The Court notes that defendant has failed to allege specific factual allegations in support of the argument for speedy trial violations, thereby corroborating the People's claim that defendant has not met his burden of demonstrating speedy trial violations attributable to the People.
Nonetheless, the Court determines that for CPL § 30.30 speedy trial purposes, the People must be ready for trial within thirty days of commencement of the criminal action, which began with the filing of the accusatory instruments and the entry of a not guilty plea for each at arraignment (see CPL § 1.20[16][a] ; § 1.20[17] ; § 100.05; People v. Sinistaj, 67 N.Y.2d 236, 239 [1986] ). Therefore, the People must be ready within 30 days from the arraignment date of August 31, 2016 on the violation informations (see People v. Cooper, 98 N.Y.2d 541 [2002] ).
In order for the People to be ready for trial, they must be in a present state of readiness, communicate their readiness, have triable accusatory instruments, and produce the defendant if in custody (see People v. England, 84 N.Y.2d 1 [1994] ). The 30.30 statute contemplates an indication of present readiness "not a prediction of expectation of readiness" (see People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ). The People can toll the "speedy trial clock" by affirmatively filing a notice of readiness (see People v. Chavis, 91 N.Y.2d 500, 501 [1998] ).
There are two components of being ready for trial; the first is the People must declare a statement of readiness in open court, transcribed by a stenographer, or recorded by the clerk, or a written notice sent to the defense counsel and the clerk (Id., at 505 ). The second is that the People must demonstrate an actual readiness to proceed with trial at the time they declare their readiness (see People v. Chavis, supra, at 505).
Nevertheless, the People are not required to continuously repeat their statement of readiness, after having already declared their readiness (see People v. Cortes, 80 N.Y.2d 201, 214 [1992] ).
Here, the Court notes that the People and the defendant have no specific factual disputes in their motion papers concerning any adjournment dates. The CPL § 30.30 issues before the Court are issues of law. Therefore no hearing is necessary (see CPL § 170.45 ; § 210.45[4][c] and [5][a],[c] ); People v. Santos, 68 N.Y.2d 859, 861 [1986] ).
The Court finds that no dates are chargeable to the People from the time of arraignment on August 31, 2016 through the date of the instant motion. There are no specific dates in contention by the parties in their respective motion papers. Moreover, there were no official transcripts of each proceeding which were supplied to the Court by either party. Therefore, the Court has made its decision by review of the markings on the Court file.
The Court notes that on the arraignment date of August 31, 2016, the adjournment date of October 26, 2016 was chosen by the parties, with defendant's consent, and the Court's approval, and was chargeable to the defendant. On October 26, 2016, the defendant submitted the instant motion for dismissal, which was adjourned to December 7, 2016 for the People's opposition papers, and adjourned to January 4, 2017 for defendant's reply papers, and submitted to the Court for decision on this date. Time for Court determination of motions is excludable from 30.30 time constraints (see CPL § 30.30[4] [a] ). Therefore, there are no speedy trial violations by the People under CPL § 30.30. Accordingly, defendant's motion to dismiss on this basis, is denied.
III. INFORMATIONS NOT SWORN:
Defendant asserts the factual allegations of each of the accusatory informations are not sworn, requiring their collective dismissal.
The Court notes that under P.L. § 210.45, it is a class A misdemeanor to make a punishable false written statement:
Penal Law § 210.45 : a person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.
Furthermore, Criminal Procedure Law § 100.30 provides the legally necessary authorization:
CPL § 100.30[1][d] : An information ... may be verified in any of the following manners: (d) Such instrument may bear a form notice that false statements made therein are punishable as a Class A misdemeanor pursuant to 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.
It is well settled that a form notice combined with the subscription of a deponent is the functional equivalent of a statement under oath and is sufficient to verify an instrument (see In re Shermaine J., 208 A.D.2d 158 [1st Dept 1995] ). Such a statement serves as a procedural and functional equivalent of the more traditional type of oath or affirmation (see People v. Sullivan, 56 N.Y.2d 378 [1982] ). This section was enacted by the legislature in order to provide a convenient method of assuring truthfulness of documents without requiring an oath before a notary (Id. ).
Here, the Court determines that each accusatory information contains the form notice under Penal Law § 210.45, along with the subscription of the complaining witness, as authorized by CPL § 100.30[1][d], which is sufficient to legally verify each statement. Therefore, defendant's argument is without merit. Accordingly, defendant's motion to dismiss on the foregoing basis, is denied.
IV. MOTION TO DISMISS ON INSUFFICIENCY AND PEOPLE'S REQUEST TO AMEND THE INFORMATIONS:
Defendant moves to dismiss counts 1 and 4, claiming a discrepancy in the dates on the informations, amounts to a facial insufficiency of each information.
The People oppose defendant's request, stating the discrepancies are merely typographical errors, and attach an affidavit of the complainant which acknowledges and corrects the mistakes.
The People further acknowledge the errors claimed by defendant in counts 1 and 4 of the pending accusatory instruments, and seek to amend the papers accordingly. The People request to amend the factual part of the charge under § 87–25(A) of the Huntington Town Code ("HTC"), to read January 7, 2016, in place of January 8, 2016, as the date of the occurrence of the alleged conduct, pursuant to CPL § 200.70(1) and CPL § 100.45(3).
The People's request is granted, and the factual charge under § 87–25(A) is so amended. The Court finds that the errors are de minimus and have not caused any prejudice to the defendant. Moreover, there is no change to the theory of prosecution for this charge with the amended change.
In addition, the People seek to amend the date the information charging § 124.10(D) of the HTC was signed by Inspector DiSalvo, to read February 22, 2016, in place of February 29, 2016, pursuant to CPL § 200.70(1) and CPL § 100.45(3).
The People's request is granted, and the date the charge was signed by Inspector DiSalvo under § 124.10(D) is so amended. The Court finds that the errors are de minimus and have not caused any prejudice to the defendant. Moreover, there is no change to the theory of prosecution for this charge with the amended change.
V. DISMISS DUE TO INSUFFICIENCY OF INFORMATIONS:
Defendant seeks to dismiss the pending accusatory instruments charging violations of the Huntington Town Code, as being jurisdictionally defective within the meaning of CPL §§ 100.40(1), 100.15, 170.30(1), and 170.35[1][c] ), on the grounds the charges are insufficient as a matter of law.
Pursuant to CPL § 100.40(1)(a), every accusatory information must conform to the requirements of CPL § 100.15. To be sufficient, an information must contain factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed the offense charged (see CPL § 100.15[3] and CPL § 100.40[1][b] ; People v. Jones, 9 NY3d 259 [2007] ; People v. Casey, 95 N.Y.2d 354 [2000] ). The factual portion of the information must be supported by non-hearsay allegations which, if true, establish every element of the offense charged (see CPL § 100.40 [1] [c] ). An information which fails to satisfy these requirements is jurisdictionally defective (see CPL § 170.30 and CPL § 170.35 ; People v. Kalin, 12 NY3d 225 [2009] ; People v. Alejandro, 70 N.Y.2d 133 [1987] ). In effect, an information must demonstrate the existence of a prima facie case against the defendant (see People v. Clinkscales, 3 Misc.3d 333 [NY Dist Ct 2004] ).
In reviewing the sufficiency of an information, the Court should view the allegations in the accusatory instrument and any supporting depositions in a light most favorable to the People (see People v. Martz, 28 Misc.3d 1215(A) [NY Dist Ct 2010] ), but should not give an overly restrictive or technical reading to the instrument (see People v. Baumann & Sons Buses, Inc., 6 NY3d 404 [2006] ).
However, not every deficiency based upon an irregularity in the accusatory instrument implicates the jurisdiction of the court (see People v. Konieczny, 2 NY3d 569, 575 [2004] ). "So long as the factual allegations of an information 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, they should be given a fair and not overly restrictive or technical reading" (see People v. Casey, supra, at 360; see also People v. Dreyden, 15 NY3d 100 [2010] ).
Nonetheless, Casey "did not dilute the statutory requirement that the allegations of the factual part of the information, and/or any supporting depositions, establish, if true, every element of the offenses charged and the defendant's commission thereof" (see People v. Cobb, 2 Misc.3d 237, 240 [NY Crim Ct 2003], citing People v. Singh, 1 Misc.3d 73 [App. Term, 2nd Dept 2003] ; see also People v. Moore, 5 NY3d 725 [2005] ; People v. Inserra, 4 NY3d 30 [2004] ; CPL § 100.40[1] ).
Moreover, since the duties of the Ordinance Inspector for the Town of Huntington, Alejandra DiSalvo, as complainant, require the searching of Town or other public records, "it is clear from the factual allegations of the information that the town [inspector] had personal knowledge of the contents of the records [s]he had searched ..." (see People v. M. Santulli, LLC., 29 Misc.3d 54, 57 [App. Term, 9th & 10th Jud. Dists.2010] ), which fairly imply personal knowledge as to the element of ownership by defendant of the subject premises contained in the information (see People v. White, 31 Misc.3d 130 [A][App. Term 9th & 10th Jud. Dists.2011] ; People v. Fischer, 6 Misc.3d 135 [A][App. Term, 9th & 10th Jud. Dists.2005] ; People v. Caravousanos, 2 Misc.3d 7, 8 [App. Term, 9th & 10th Jud. Dists.2003] ). Rather, "the source or validity of [her] knowledge is a matter to be raised as an evidentiary defense at trial and need not be raised in the information" (see People v.. White, supra at *2, quoting People v. Casey, supra; People v. Schmidt, 7 Misc.3d 128[A][App. Term, 9th & 10th Jud. Dists.2005] ; People v. Hall, 4 Misc.3d 60, 63 [App. Term, 9th & 10th Jud. Dists.2004] ; People v. Caravousanos, supra, at page 11); People v. Sikorski, 195 Misc.2d 534, 536 [App. Term 2nd Dept 2002] ).
Here, the Court determines that each charge contains factual allegations of an evidentiary nature demonstrating reasonable cause to believe defendant committed each offense charged (see People v. Casey, supra ); CPL § 100.15[3] and CPL § 100.40[1][b] ), and demonstrate the existence of a prima facie case against the defendant (see People v. Clinkscales,supra ). The Court further finds that viewing the allegations in each of the accusatory instruments in a light most favorable to the People (see People v. Martz, supra ), but not giving an overly restrictive or technical reading to each instrument (see People v. Baumann & Sons Buses, Inc.,supra ), provides sufficient factual information in each of the accusatory instruments, supported by non-hearsay allegations, which, if true, establish every element of each offense charged (see CPL § 100.40[1][c] ). The factual allegations are sufficiently detailed so that defendant may prepare a defense, and to establish what defendant is being charged with, so that defendant is protected against future prosecution for the same offense (see People v. Dreyden, supra; People v. M. Santulli, LLC., supra at 57; People v. Fischer, supra ).
Therefore, the Court determines each of the accusatory informations are not jurisdictionally defective within the meaning of CPL §§ 100.40(1), 100.15, 170.30(1), and 170.35[1][c] ), on the grounds each of the charges is insufficient as a matter of law. Accordingly, the motion to dismiss on these grounds is denied.
VI. BRADY MATERIAL:
The People are reminded of their continuing obligations under Brady (Brady v. Maryland, 373 U.S. 83 [1963] ), to provide to defendant any and all exculpatory material if and when such material becomes known to the People, and is in their possession.
VII. ROSARIO MATERIAL:
The People are reminded that all information concerning witnesses which the People intend to call at trial shall be made available to defendant pursuant to CPL § 240.44 and CPL § 240.45 (see People v. Rosario, 9 N.Y.2d 286 [1961] ).
It is not necessary for the Court to rule upon any remaining contentions.
The foregoing constitutes the decision and order of this Court.