Opinion
CR16–133
12-26-2017
The PEOPLE of the State of New York, Plaintiff, v. Tucker K. KARSON, Defendant.
Jason M. Carusone, Esq., Warren County District Attorney (Travis A. Brown, Esq., of counsel), Lake George, New York. Reginald H. Bedell, Esq., Elizabethtown, New York for the defendant.
Jason M. Carusone, Esq., Warren County District Attorney (Travis A. Brown, Esq., of counsel), Lake George, New York.
Reginald H. Bedell, Esq., Elizabethtown, New York for the defendant.
Richard B. Meyer, J. Motion by the People to return two felony complaints and other papers to the local criminal court for reconsideration of the action to be taken thereon ( CPL § 180.40 ).
This criminal action was commenced on August 29, 2016 by the filing of two felony complaints charging the defendant with menacing in the first degree ( Penal Law § 120.13 )—he has a 2014 conviction for menacing in the second degree by displaying a weapon —and criminal mischief in the second degree ( Penal Law § 145.10 ), a class D felony, plus three additional accusatory instruments and a uniform traffic ticket charging the defendant with endangering the welfare of a child ( Penal Law § 260.10[1] ), a class A misdemeanor, the violations of harassment in the second degree ( Penal Law § 240.26 ) and unlawful possession of marijuana ( Penal Law § 221.05 ), and the traffic infraction of illegally parking on a highway ( VTL § 1201[a] ). According to the sworn deposition filed with the accusatory instruments, the charges arise out of an incident in which the defendant, after first bringing his own vehicle alongside a stopped truck operated by Marc J. Austin (Austin) and in which Austin's eight-year old child a passenger, started yelling at Austin. As Austin drove away, the defendant followed the truck. Then, in a no passing zone, the defendant passed Austin at a high rate of speed, cutting off Austin's path and causing a collision between the two vehicles. The defendant then exited his vehicle, grabbed Austin by the shirt and began punching Austin, all in the presence of the eight-year old child. During the course of the fight, the defendant threatened Austin, saying, "I'm going to kick your ass" and "come on, I'll fuckin kill ya". When Shawn A. Collette (Collette) observed the scuffle between the defendant and Austin, he pulled his vehicle to a stop and got out in an attempt to break up the fight. The defendant threatened Collette with a screwdriver, pulling it from his pocket and displaying it in a threatening manner while saying, "I'm gonna fuckin kill ya" and "I'll kill you all and the kid". The defendant then proceeded to slash the tires on Austin's truck and kick the driver's door denting it before law enforcement and emergency personnel arrived. Although the underlying incident occurred in the town of Crown Point, Essex County, the Crown Point town justice filed a certificate of disqualification and the case was thus removed to the justice court in the adjoining town of Ticonderoga where other charges were then pending against the defendant. The defendant was arraigned in Ticonderoga town court on August 29, 2016 and pled not guilty to all charges. He was released on $5,000 cash bail and held for action of the grand jury.
"A person is guilty of menacing in the second degree when ... [h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm ..." ( Penal Law § 120.14[1] ).
The other criminal action that was pending against the defendant in Ticonderoga town court arose out of an incident that occurred in the town of Crown Point on July 5, 2016 when the defendant is alleged to have operated his motorcycle alongside a motorcycle being operated by Austin and then struck Austin in the face with a closed fist. The defendant was charged with the crimes of reckless endangerment in the second degree ( Penal Law § 120.20 ), a class A misdemeanor, reckless endangerment of property ( Penal Law § 145.25 ), a class B misdemeanor, and the violation of harassment in the second degree ( Penal Law § 240.26 ).
On September 12, 2016 the Essex County District Attorney applied for the appointment of a special district attorney on the grounds of a conflict of interest ( County Law § 701 ), and the Warren County District Attorney accepted the appointment for both pending cases. Without the knowledge of or input from this Court, in early December 2016 a Warren County assistant district attorney offered a pre-indictment plea agreement for both cases which, if accepted, would be consummated in this Court. The terms of the suggested plea agreement consisted of pleas of guilty by the defendant pleading to one class E felony offense from the August incident, criminal mischief in the third degree ( Penal Law § 145.05[2] ), a reduced charge, and menacing in the second degree from the July incident, in satisfaction of all charges. The offer also included, among other terms, a proposed split sentence of six months in the county jail and five years probation, restitution to Austin in the amount of $1,431.77, stay away and no contact orders of protections, a fine in the court's discretion on the felony and no fine for the misdemeanor, as well as surcharges and fees. The offer contained language that the defendant's execution of the offer constituted an agreement "to accept any Criminal Procedure Law time delay associated with my waiver of this matter to Essex County Court o proceed via Superior Court information as detained above." Nothing in the plea offer provided for it to be contingent upon acceptance by this Court or a commitment, conditional or otherwise, to impose the proposed sentences. A copy of that plea offer was furnished to the Ticonderoga town court. On December 7, 2016 the defendant and his attorney accepted the plea offer, executed the agreement, and waived a felony hearing ( CPL § 180.60 ).
Both cases were divested to this Court on December 12, 2016 . On January 23, 2017, the prosecuting attorney sent a note by facsimile transmission to the court clerk asking for a date to schedule the waiver of indictment and plea on a superior court information. The matter was then brought to this Court's attention for the first time. By letter dated February 6, 2017 this Court notified both attorneys that the agreement did not reflect that sentencing is in this Court's sole discretion and the proposed sentences in the plea agreement were only non-binding recommendations. The then Warren County District Attorney subsequently requested that the Court "advise us if the proposed plea agreement does meet with your approval, or in the alternative, what disposition would be approved by the Court". In a letter dated February 17, 2017, counsel were advised as follows:
The divestiture of the July misdemeanor and violation charges presumably occurred pursuant to CPL § 170.20 or § 170.25. "The CPL offers two avenues for removal to a superior court. The present section [§ 170.20 ] provides one: i.e., an absolute right of the People to present the charge to a Grand Jury with a view to prosecuting it by indictment in a superior court. The other avenue, an application by the defendant to a superior court judge for an order directing the district attorney to present the charge to a Grand Jury, is set forth in CPL § 170.25." (Preiser, Practice Commentaries, McKinney's Cons. Laws of NY , Book 11A, CPL § 170.20 at pg.44).
"I am sorry that I cannot accommodate your
request as I will not commit to any particular disposition. Before arriving at an appropriate sentence for each conviction, should the defendant plead guilty to the offenses proposed in Mr. Brown's letter, I will need to consider a presentence report, victim impact statements, and any other information furnished by your office and/or Mr. Bedell. I will, of course, give your recommendations considerable weight in determining an appropriate sentence for each conviction. In the end, however, should the defendant plead guilty to the two charges, he could receive up to the maximum sentences for each offense."
On March 28, 2017 the prosecuting assistant district attorney advised the Court that "[t]he People and the defense have reached an agreed upon local court disposition of the two matters and respectfully request that they be divested to the Ticonderoga Town Court for resolution". In a letter dated April 4, 2017 to both attorneys, this Court informed them that "[t]here is no authority for me to divest this case to the Ticonderoga Town Court upon submission of a letter", and the request was for that reason denied. The prosecuting attorney then proceeded to file a prosecutor's information with the Ticonderoga town court combining charges from the two cases. Count one of that instrument charged the defendant with one of the same offenses from the July incident, namely menacing in the second degree, to satisfy all charges from that event, while in count two the defendant was charged with the reduced crime of criminal mischief in the fourth degree ( Penal Law § 145.00[1] ), a class A misdemeanor, to satisfy all of the August charges.
In July 2017, the clerk of this Court was notified by the clerk of the Ticonderoga town court that the defendant had pled guilty to the two charges in the prosecutor's information, and been sentenced thereon. In a letter dated July 7, 2017, this Court notified counsel that the defendant's plea and sentence on the criminal mischief misdemeanor may be illegal because the August criminal action was no longer within the town court's jurisdiction since the felony complaints had been divested to this Court and the defendant held for action of the grand jury ( CPL § 180.70[1] ). The Ticonderoga town court thereafter scheduled counsel and the defendant for an appearance on July 25, 2017 "to be heard on any motions and subsequent disposition recommendations you may plan to present to this court regarding this case." Reportedly, defense counsel refused to appear and participate.
The prosecuting attorney then filed the instant motion to return the felony complaints and other papers to the Ticonderoga town court, all pursuant to CPL § 180.40. The only papers submitted are the notices of motion and the supporting affirmation of Warren County Assistant District Attorney Travis A. Brown, Esq. dated July 24, 2017 with a number of undesignated exhibits. The People do not allege that defects exist in the felony complaints, and a review of those complaints reveals none. Rather, the People seek return of the felony complaints and other charges "in the interests of justice" because the defendant offered to, and made, restitution to Austin in the amount of $1,431.77, and the prosecuting assistant district attorney did not understand that he could not proceed in the town court on a prosecutor's information after the case had been divested to this Court.
Criminal Procedure Law § 180.40 provides that "[w]here the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing that the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an order if it is satisfied that the felony complaint is defective or that such action is required in the interest of justice [italics added]." An order of a superior court returning a felony complaint to a local criminal court on the grounds that such "is required in the interests of justice" is, at the very least, an implicit recognition and recommendation to the lower court that facts exist such that the defendant should not be prosecuted for that felony crime. CPL § 180.40 is silent on the factors a court must consider in determining whether the interests of justice warrant return of a felony complaint and other papers to a local criminal court. The absence of language specifying what constitutes the "interests of justice" does not mean, however, that a court has unfettered discretion or that a motion is to be granted merely for the asking.
[T]he "word 'may' clearly connotes discretion."
Martin v. Franklin Capital Corp. , 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (quoting Fogerty v. Fantasy, Inc. , 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ). * * * At the same time, "[d]iscretion is not whim." Martin , 546 U.S., at 139, 126 S.Ct. 704. "[I]n a system of laws discretion is rarely without limits," even when the statute "does not specify any limits upon the district courts' discretion." Flight Attendants v. Zipes , 491 U.S. 754, 758, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989). "[A] motion to a court's discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Martin , 546 U.S., at 139, 126 S.Ct. 704 (quoting United States v. Burr , 25 F.Cas. 30, 35 (No. 14,692d) (C.C.D.Va.1807) (Marshall, C.J.); alteration omitted). ( Halo Elecs., Inc. v. Pulse Elecs., Inc. , 579 U.S. ––––, ––––, 136 S.Ct. 1923, 1931–32, 195 L.Ed. 2d 278 [2016] ).
There are simply no facts before this Court which could justify a return of this case to the local criminal court. Rather, review of the supporting depositions in this case, and the defendant's criminal history, all of which are contained in the divestitures to this Court, militate against granting such relief. The sworn depositions of the three complainants describe an enraged, out-of-control defendant who initiated and engaged in unjustified life-threatening, violent behavior endangering not only Austin, Austin's son and Collette but the traveling public. In light of these sworn allegations, and the fact that the sworn deposition supporting the July 2016 charges reveal that the defendant also then engaged in unjustified life-threatening and violent behavior towards Austin, pulling up alongside Austin as Austin operated a motorcycle and punching Austin in the face, almost causing Austin to lose control and crash, the interests of justice would not at all be served by returning this case to Ticonderoga town court.
In proceeding before the local criminal court on a prosecutor's information, the prosecuting and defense attorneys demonstrated a nescience of fundamental legal concepts and principles that every lawyer passing this state's bar examination should know. "Once a local criminal court has ordered that a defendant be held for the action of the Grand Jury and has transmitted the order, the felony complaint and the supporting papers to the superior court, the criminal action is no longer pending in the local criminal court ( CPL 180.70, subd. 1 )" ( People v. Daniel P. , 94 A.D.2d 83, 89–90, 463 N.Y.S.2d 838, 843 [abrogated on other grounds, Morgenthau v. Roberts , 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561 ] ) . Thus, "[o]nce jurisdiction is assumed by the superior court, the local criminal court has no jurisdiction over the charges unless re-vested with jurisdiction by superior court order (see, People v. Garrett , 117 Misc. 2d 510, 458 N.Y.S.2d 855 ; People v. Fulcher , 97 Misc. 2d 239, 411 N.Y.S.2d 167 )" ( People v. Simmons , 180 Misc. 2d 1006, 1008, 694 N.Y.S.2d 305, 307 ). "Clearly, it is well settled that neither superior courts nor local courts have inherent authority to dispose of criminal cases in ways the Legislature never specifically authorized (see, Matter of Morgenthau v. Roberts , 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561; People v. Douglass , 60 N.Y.2d 194, 469 N.Y.S.2d 56, 456 N.E.2d 1179 ; Lortz v. Lortz , 162 Misc. 2d 539, 616 N.Y.S.2d 876 ; People v. Leonardo , 141 Misc. 2d 526, 533 N.Y.S.2d 660 ; see also, People v. Mezon , 80 N.Y.2d 155, 159, 589 N.Y.S.2d 838, 603 N.E.2d 943 )" (id. ). Since the clerk of this Court received the divestiture from the Ticonderoga town court on December 12, 2016, the town court was thereafter without jurisdiction to consider or conduct any proceedings on the second count of the April 25, 2017 prosecutor's information charging the defendant with criminal mischief in the fourth degree.
However, "[u]ntil such papers are received by the superior court, the action is deemed to be still pending in the local criminal court" ( CPL § 180.30[1] ).
Furthermore, the People were without the legal authority to file a prosecutor's information relating to the charges from the August 2016 incident because such a prosecutor's information can only be filed when "an information or a prosecutor's information" is pending in a local criminal court for the purpose of superseding the first such instruments or to add new charges not initially charged ( CPL § 100.50 ). A felony complaint is not "one of the class of accusatory instruments which may be superseded by a prosecutor's information ..." ( People v. Thomas , 107 Misc 2d 947, 948, 436 N.Y.S.2d 153, 154 [Dist. Ct. 1981] ). Also, a prosecutor's information can only be filed "either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20" ( CPL § 100.10[3] ). There has been no direction from a grand jury, local criminal court, or this Court to file a prosecutor's information. Because a district attorney can file a prosecutor's information at her/his own instance only when charges are pending in local criminal court, and since the August 2016 charges had previously been divested to this Court in December 2016, the April 2017 prosecutor's information charging the defendant with the reduced crime of criminal mischief in the fourth degree in order to supercede the felony complaints was unauthorized and a nullity.
Finally, the efforts of both attorneys to avoid proceeding before this Court on the original plea agreement was premised upon this Court's refusal to commit to the sentence negotiated solely by and between counsel even though this Court did not indicate that such a sentence would not be considered or ultimately imposed. The machinations employed by both the prosecuting and defense attorneys here are concerning not only because they reflect a mistaken belief that courts should accede to their judgment on an appropriate sentence to be imposed for criminal behavior but also for the reason that such accession represents an abdication of the constitutional function and independence of the judiciary in criminal cases.
"[S]entencing is a function of the Trial Judge (see CPL 380.20 ; People v. Green , 75 A.D.2d 502, 426 N.Y.S.2d 736 ; People v. Gomez , 103 Misc. 2d 352, 425 N.Y.S.2d 776 )" ( People v. Felix , 58 N.Y.2d 156, 161, 460 N.Y.S.2d 1, 3, 446 N.E.2d 757, 759 [1983] ), and the prosecution and defense may not conspire to usurp that function. As the Court of Appeals explained in People v. Selikoff , 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 633–34, 318 N.E.2d 784, 791–92 (1974).
A penal sanction has, at least, the purposes of deterrence, rehabilitation, and social protection. To enable the court to perform its function, the statute mandates, and it is the public policy of this State to require, a presentence report before sentence be imposed ( CPL 390.20, subd. 1, Consol.Laws, c. 11–A; People v. Aiss , 29 N.Y.2d 403, 328 N.Y.S.2d 438, 278 N.E.2d 647 ). * * * A Judge may not ignore those provisions of law designed to assure that an appropriate sentence is imposed (cf. People v. Lopez , 28 N.Y.2d 148, 151, 320 N.Y.S.2d 235, 237, 269 N.E.2d 28, 29 ). Thus, any sentence 'promise' at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources. * * * In demanding 'specific performance' of the promised
sentence defendant would apply commercial contract law to plea negotiation. * * * Application to plea negotiations of contract law is incongruous. The strong public policy of rehabilitating offenders, protecting society, and deterring other potential offenders presents considerations paramount to benefits beyond the power of individuals to 'contract'. Even if the contract analogy were apt defendant would be seeking enforcement of a 'bargain' violative of the statute and the public policy requiring a presentence report before sentence.
In People v. Farrar , 52 N.Y.2d 302, 305, 419 N.E.2d 864, 865–866, 437 N.Y.S.2d 961, 962–963 (1981), the Court of appeals expounded further upon the role of the judiciary and its sentencing function in the context of plea bargaining:
The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, I. e., societal protection, rehabilitation and deterrence (see People v. McConnell , 49 N.Y.2d 340, 346, 425 N.Y.S.2d 794 ; Penal Law, s 1.05, subd. 5 ). The law and strong public policy of this State mandate that the court, detached from outside pressures often brought to bear on the prosecution and defense, make that determination. Quite simply, the court
must perform the delicate balancing necessary to accommodate the public and private interests represented in the criminal process.
Contrary to the People's argument, the court cannot be deemed to have finally exercised its discretion at the time that the plea, with the proposed sentence, is accepted. While the court legitimately may indicate that a proposed sentence is fair and acceptable, the necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then. Indeed such a view of the plea bargaining process and sentencing function was expressly disapproved in People v. Selikoff , 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784. The court there made clear that the sentencing function rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence and who must exercise his or her responsibility at the time of sentencing in the light of information
obtained from the presentence report or other source ( id., at pp. 238–240, 360 N.Y.S.2d 623, 318 N.E.2d 784 ). Any other rule would negate the distinctions between the court's role in sentencing and accepting a plea and ignore the procedures designed to ensure that an appropriate sanction be imposed. Thus, a sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court. Just as the court must be free to impose a more severe sentence when warranted, the plea and sentence process must leave the court leeway to consider a lesser penalty when the facts and justice so require. No less can be accepted if the integrity of the criminal justice system is to be maintained.
The conduct of counsel to manipulate and subvert the judicial process, possibly violating the Rules of Professional Conduct (22 NYCRR Part 1200, Rule 1.1[a], Rule 8.4[b], [d], [h] ), cannot be permitted and this Court will not place its imprimatur thereon by granting the motion. The motion must be and hereby is denied.
It is so ordered .