Opinion
2010NA030362
12-21-2011
The People of the State of New York, Plaintiff, v. Brian Rackett, Defendant.
Hon. Kathleen Rice, Nassau County District Attorney Attorney for Defendant: Edward G. McCabe, Esq.
Hon. Kathleen Rice, Nassau County District Attorney
Attorney for Defendant: Edward G. McCabe, Esq.
Andrew M. Engel, J.
Papers Submitted:
Notices of Motion...........................................................1
Affirmation in Support....................................................2
Affirmation in Opposition...............................................3
Reply Affirmation...........................................................4
The Defendant was originally charged, by Felony Complaint, on November 23, 2010 with Attempted Grand Larceny in the Third Degree, in violation of Penal Law §§ 110.00/155.35.On June 9, 2011this charge was reduced, pursuant to CPL § 180.50, to Attempted Grand Larceny in the Fourth Degree, in violation of Penal Law §§ 110.00/155.30(1). This reduction, and the conversion of the Felony Complaint to a District Court Information, was accomplished by the appropriate notations having been made on the Felony Complaint, in accordance with CPL § 180.50(3)(a)(iii) and by the annexing of a short form order directing such reduction to the Felony Complaint. The Defendant was then arraigned on the new accusatory instrument.
The Defendant now moves to dismiss the District Court Information, as being facially insufficient, pursuant to CPL § 170.30(1)(a). The Defendant argues that the People's theory of the case is one of larceny by extortion and that "the information herein does not advise or place defendant on notice that the theory of prosecution is based upon larceny by extortion." (McCabe Affirmation 10/16/11, ¶ 11) Specifically, the Defendant alleges that "the information sets forth no exact words of the defendant which are alleged to have constituted the actual conduct of extortion."(McCabe Affirmation 10/16/11, ¶ 12) The Defendant further alleges that "no such words or conduct are delineated or to whom these unidentified statements were to be made which creates a jurisdictional defect." (McCabe Affirmation 10/16/11, ¶ 15) Likewise, the Defendant claims that there are no allegations in the Information setting forth the owner of the property or the Defendant's lack of authorization to obtain the property in question.
In opposition the People argue that the facial sufficiency of the District Court Information was already determined at the time of the reduction of the Felony Complaint, pursuant to CPL § 180.50(3)(a)(iii), and that this court is now precluded from hearing this issue. Alternatively the People allege that the Information is facially sufficient. Specifically, the People argue that the Defendant is charged with an attempted violation of subdivision 1of Penal Law § 155.30, i.e., attempting to steal property with a value in excess of one thousand ($1,000.00) dollars, not with an attempted violation of subdivision 6 of that section, i.e., attempted stealing of property by extortion, regardless of its value, and that the elements of larceny by extortion need not be spelled out in the Information. It is the People's position that the Information need only spell out that the Defendant attempted to steal property with a value exceeding one thousand ($1,000.00) dollars, which they believe they have done. Nevertheless, the People also argue that the Information sufficiently sets forth the details of the attempted larceny by extortion.
PEOPLE'S CPL § 180.50 ARGUMENT
The People's position, that the reduction of a felony charge to a misdemeanor pursuant to CPL § 180.50(3)(a)(iii) results in a binding determination as to the facial sufficiency of the newly created District Court Information, effectively converts the reduction procedure to a defendant's motion to dismiss pursuant to CPL § 170.30(1)(a). The court finds that such an application of CPL § 180.50(3)(a)(iii) is not only contrary to the intended purpose of that section, but eviscerates the application of CPL § 170.30(1)(a) to any felony offense reduced pursuant to CPL § 180.50(3)(a)(iii) and potentially denies a defendant the opportunity to be heard concerning the facial sufficiency of the accusatory instrument.
Clearly, "[t]he drafters of the Criminal Procedure Law provided for the reduction of Felony Complaints in order to expedite the resolution of less serious cases in local criminal courts, and in order that superior courts not be cluttered up with cases that do not truly merit prosecutions as felonies." People v. DeShazo, 183 Misc 2d 719, 703 N.Y.S.2d 907 (Dist.Ct. Nassau Co. 2000) It is not the statute's purpose to be the mechanism by which an ultimate determination as to the facial sufficiency, jurisdictional or otherwise, of a District Court Information is to be determined. As recognized by the court in People v. Gardner, 78 Misc 2d 744, 359 N.Y.S.2d 196 (Sup. Ct. Westchester Co. 1974) "It [section 180.50] is nothing more than a safety-valve, so to speak, designed to take care of the instance where the charge of Any (sic) felony is unwarranted." (emphasis added)
The expedited mechanism spelled out in CPL § 180.50 for the reduction of felonies to misdemeanors provides, in subparagraph 1, that the court may make inquiry, with the People's consent, to determine whether there is reason to believe an offense other than a felony was committed, as a predicate to such reduction. If, after inquiry, there is no reasonable cause to believe that a felony was committed in addition to the non-felony offense, the court may order the reduction, without the consent of the People. see: CPL § 180.50(2)(a) Where there is reasonable cause to believe a felony offense, in addition to a non-felony offense, was committed, the court may reduce the felony offense to the non-felony offense, only where it is found to be in the interests of justice and where the People consent to such reduction. see: CPL § 180.50(2)(a) Conspicuously absent from the statutory scheme is any requirement that the defendant be consulted or that the defendant have any right to be heard on the reduction and conversion.
As aptly stated by my colleague, Hon. Susan T. Kluewer, in addressing this very same issue, in People v. Ingrilli, 31 Misc 3d 1220(A), 929 N.Y.S.2d 201 (Dist. Ct. Nassau Co. 2011):
To regard a unilateral determination about how the reduction should be effectuated as a definitive ruling that, e.g, a felony complaint —the function of which is to demonstrate the existence of reasonable cause to believe the defendant committed a felony (cf. 100.40[3]; see also CPL 100.10[5]) — has been transformed into a facially sufficient information — the purpose of which is to demonstrate the existence of a prima facie case — simply because of court notations and, perhaps, annexation of a supporting deposition, is untenable and impractical (cf. People v. Bilsky, 95 NY2d 172, 712 N.Y.S.2d 84 [2000])."
Judge Kluewer further noted that the "law of the case" doctrine could have no application in such a situation, where one party, the defendant, had no opportunity to be heard on the issue which the People wish to give preclusive effect. citing: People v. Evans, 94 NY2d 499, 706 N.Y.S.2d 678 (2000)
Further belying the People's argument are the provisions of CPL § 180.50(3)(d), which, inter alia, require the court to "arraign the defendant on the new accusatory instrument ...." and the provisions of CPL § 170.30(1) which explicitly set forth that it is this arraignment which serves as the trigger for a defendant's motion to dismiss for facial insufficiency pursuant to subparagraph (a) and CPL § 170.35(1). As noted in the Practice Commentaries, "This section [CPL § 170.30] sets the timing and spells out the grounds for a motion to dismiss a local criminal court accusatory instrument (other than a felony complaint)." Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, p. 74 See also: People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 (App. Term First Dept. 2000) lv. den. 95 NY2d 835, 713 N.Y.S.2d 142 (2000) ["an application to dismiss an accusatory instrument filed in a local criminal court can only be heard [a]fter arraignment' (CPL 170.30[1])"]; People v. Ress, 25 Misc 3d 82, 889 N.Y.S.2d 367 (App.Term 9th & 10th Jud. Depts. 2009)["dismissal of the superseding accusatory instruments ..., prior to defendants' arraignment on the instruments, ... was improper ...."]; People v. New York Paving, Inc., 155 Misc 2d 176, 587 N.Y.S.2d 528 (Crim.Ct. Queens Co. 1992) ["a motion to dismiss an information as insufficient or defective may only be made after arraignment."]; People v. Furst, 1 Misc 3d 654, 765 N.Y.S.2d 753 White Plains City Ct.2003) [the court denied a pre-arraignment motion to dismiss for facial insufficiency as "premature"]
In harmony with these provisions, and with the court's opinion that a reduction pursuant to CPL § 180.50(3)(a)(iii) cannot act a substitute for a defendant's motion to dismiss pursuant to CPL §§ 170.30(1)(a) and 170.35(1), are the provisions of CPL § 170.45, which provide, inter alia, that the "procedural rules prescribed in section 210.45 with regard to the making ... of a motion to dismiss an indictment are also applicable to a motion to dismiss an information ...." and the provisions of CPL § 210.45(1), which mandate, among other things, that a motion to dismiss "must be made in writing." see also: People v. Williams, 186 Misc 2d 705, 721 N.Y.S.2d 456 (App Term First Dept. 2000); People v. Parker, 223 AD2d 179, 648 N.Y.S.2d 430 (1st Dept.1996) lv.den. 89 NY2d 927, 677 N.E.2d 301, 654 N.Y.S.2d 729 (1996)
Following the People's argument, Sections 170.30, 170.35, 170.45 and 210.45, among others, would simply be written out of the Criminal Procedure Law whenever a felony offense is reduced pursuant to CPL § 180.50(3)(a)(iii). Moreover, the People's position would preclude a defendant from ever challenging the facial sufficiency, jurisdictional or otherwise, of the converted District Court Information, without ever having been provided the opportunity to be heard. For the reasons set forth above, the court does not believe that was the intended purpose of CPL § 180.50 and refuses to adopt the People's argument.
FACIAL SUFFICIENCY
The District Court Information will be found facially sufficient where it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions [CPL § 100.20], must "provide reasonable cause to believe that the defendant committed the offense," People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(1)(b) and contain non-hearsay allegations which, if true, establish every element of the offense charged, CPL § 100.15(3); CPL § 100.40(1)(c) People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005); People v. Bottari, 31 Misc 3d 90, 924 N.Y.S.2d 733 (9th & 10th Jud. Dists. 2011)
The Defendant is correct in asserting that "[w]here [as here] the theory of prosecution is larceny by extortion, proof that the defendant compelled or induced another person to part with property by instilling fear of future injury is necessary. [P.L. § 15505[2][e]] In other words, in any such prosecution, extortion is a necessary element of the proof." People v Capparelli, 158 Misc 2d 996, 603 N.Y.S.2d 99 (Sup. Ct. NY Co. 1993); see also: People v Norman, 6 Misc 3d 317, 789 N.Y.S.2d 613 (Sup. Ct. Kings Co. 2004) The Defendant is incorrect, however, in alleging that the District Court Information herein does not properly spell out the elements of a larceny by extortion.
Having charged the Defendant with Attempted Grand Larceny in the Fourth Degree, pursuant to Penal Law §§ 110.00/155.30(1), where the only applicable theory of larceny is that by extortion, see: Penal Law § 155.05(2)(a-e), the information and supporting deposition must set forth reasonable cause to believe and provide non-hearsay allegations which, if true, establish that "with intent to [steal property with a value in excess of one thousand ($1,000.00) dollars, the Defendant] engage[d] in conduct which tend[ed] to effect the commission of such crime" Penal Law § 110.00 by:
compel[ling] or induc[ing] another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the [Defendant] or another will:
(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
(ix) Perform any other act which would not in itself materially benefit the [Defendant] but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships. See: Penal Law § 155.05(2)(e)
In satisfying these elements, the supporting deposition of Weber Henry alleges, in pertinent part, that he is the President of Remax; that the Defendant was his assistant; and, that on the day in question, following a face to face confrontation with the Defendant concerning the Defendant's alleged use of Mr. Henry's computer without his permission and the Defendant's removal of boxes from the office, Mr. Henry fired the Defendant for removing company documents, insubordination and unprofessionalism. According to Mr. Henry, 911 was called to remove the Defendant from the premises and, when they did so, the Defendant handed a typewritten note to Mr. Henry which, according to Mr. Henry, stated, in sum and substance:
[Defendant] is aware of improper business practices that [Mr. Henry has] taken part in and that upon [Defendant's] termination to ensure these improprieties are kept secret from [Mr. Henry's] business partners and franchisees [Defendant] is to recieve (sic) a substantial severance package. Package incl. 6 months salary in one lump sum (Yearly sal = $34,000). Transfer of title for a 2007 Ford Expedition to [Defendant's] name with clean bill of sale and continuation of [Defendant's] COBRA benefits for 1 year, paid in full by RMNY. Then upon meeting of [Defendant's] demands [Defendant] will then sign a non-disclosure document ... Choose wisely and don't underestimate [Defendant's] resolve in following through with his intended agenda ... These actions can place [Mr. Henry] in a very uncomfortable position both legally and professionally.
Viewing these allegations in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co. 2007), without giving them an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006), the court finds that they establish, through first hand non-hearsay allegations, that the Defendant attempted to compel Mr. Henry to provide him with property having a value in excess of one thousand ($1,000.00) dollars, to which the Defendant was not otherwise entitled, by instilling in Mr. Henry fear that the Defendant would "expose a secret or publicize an asserted fact, whether true or false, tending to subject [Mr. Henry] to hatred, contempt or ridicule"Penal Law § 155.05(2)(e)(v) and/or by "perform[ing] any other act which would not in itself materially benefit the [Defendant] but which is calculated to harm [Mr. Henry] materially with respect to his ... business, calling, career, financial condition, reputation or personal relationships."Penal Law § 155.05(2)(e)(ix)
Contrary to the Defendant's argument, while it may have been a better practice to annex the Defendant's alleged typewritten note to the Information, the failure to have done so is not fatal to the facial sufficiency of the accusatory instrument. The contents of the note, as related by Mr. Henry in his supporting deposition, are not offered for the truth of those statement, the very definition of hearsay, See: Spensieri v. Lasky, 94 NY2d 231, 701 N.Y.S.2d 689 (1999); Nucci v. Proper, 95 NY2d 597, 721 N.Y.S.2d 593 (2001); Stern v. Waldbaum, Inc., 234 AD2d 534, 651 N.Y.S.2d 187 (2nd Dept. 1996); Winant v. Carras, 208 AD2d 618, 617 N.Y.S.2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 N.Y.S.2d 288 (1995); rather they are set forth as a demonstration that such statements, true or not, where made by the Defendant to Mr. Henry, as part of the criminal res gestae of the alleged extortion. See: People v. Taylor, 82 AD3d 1016, 919 N.Y.S.2d 62 (2nd Dept. 2011); People v. Adamses, 53 AD3d 503, 862 N.Y.S.2d 80 (2nd Dept. 2008) lv. den. 11 NY3d 895, 873 N.Y.S.2d 271 (2008)
Based upon all of the foregoing, the court finds that the Information serves its intended purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. Dreyden, 15 NY3d 100, 905 N.Y.S.2d 542 (2010); People v. Kalin, 12 NY3d 225, 878 N.Y.S.2d 653 (2009) People v. McDermott, 69 NY2d 889, 515 N.Y.S.2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 N.Y.S.2d 250 (1959)
Accordingly, the Defendant's motion to dismiss is denied.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
December 21, 2011
___________________________
Andrew M. Engel
J.D.C