Opinion
5166.
Decided July 10, 2009.
Julie A. Garcia, Esq., Essex County District Attorney, Elizabethtown, New York.
McPhillips, Fitzgerald Cullum, LLP (W. Bradley Krause, Esq., of counsel), Glens Falls, New York, for the defendant.
Application by the Essex County District Attorney for an order exonerating bail.
The application consists of a letter to the Court, copied to defense counsel, stating, "Please be advised that the above referenced case has been resolved in local court. Therefore, could you please exonerate the bail."
Felony complaints were filed against the defendant on July 14, 2008 charging him with the crimes of assault in the second degree ( Penal Law § 120.05[1]), a class D violent felony, and coercion in the first degree ( Penal Law § 135.65[1]), a class D felony. The felony complaints and the supporting deposition of the victim, the defendant's wife, allege that on July 13, 2008 at approximately 3:50 a.m in the Town of Ticonderoga, Essex County, the defendant punched her in the ribs causing laceration to her spleen. Her injuries were so severe that she required hospitalization in intensive care and medical treatment. It is also alleged that in order to prevent her from calling 911 and her sister, he took her cell phone and tore the telephone line for her cordless phone off the wall.
The defendant was arraigned on July 14, 2008 in the Schroon town court, a town adjoining Ticonderoga, without counsel, and the matter was adjourned so that the defendant could appear with counsel in Ticonderoga town court. A securing order was issued setting bail at $10,000 cash or $20,000 insurance company bail bond, and a bond was posted that date. The defendant thereafter appeared with counsel in Ticonderoga town justice court on July 16, 2008 and entered a plea of not guilty. A temporary order of protection was issued, and upon the consent of all parties a pre-plea investigation was ordered. The pre-plea report, dated August 28, 2008 was filed with the court. Despite the recommendation in the report that the defendant be sentenced to a three-year term of probation, indicating a possible plea to a misdemeanor offense in full satisfaction of the felony charges, there is no indication that the district attorney consented to reduction of the felony charges ( CPL § 180.50). The defendant waived his right to a preliminary hearing ( CPL § 180.60), and an order holding the defendant for grand jury action was issued on September 10, 2008. This case was divested by the Ticonderoga town justice court on September 15, 2008 when the divestiture, signed by the town court clerk, along with all other papers were filed with the clerk of this Court.
In February 2009, the district attorney moved for an order pursuant CPL § 180.40 directing that the felony complaints and all other papers transmitted to this court on September 15, 2008 ( CPL § 180.30[1]) be returned to the local criminal court so that the defendant could enter a plea to the crime of criminal mischief in the fourth degree ( Penal Law § 145.00[4]), a class A misdemeanor, for intentionally disabling or removing telephone equipment to prevent his wife from seeking emergency assistance. The motion papers contended that return of the charges was warranted because it was the determination of the district attorney's office that the case should not be prosecuted as a felony and it would not be in the interests of justice, or the best interests of the defendant's and alleged victim's family, for there to be a felony prosecution. A signed plea agreement was included as part of the motion. No affidavit or other written statement from the victim was included in the motion, nor was a copy of the pre-plea report attached or incorporated therein. The motion was denied since there was no claim that the felony complaints were defective and because insufficient factual information was provided to enable this Court to determine that "such action is required in the interests of justice" ( italics added)( CPL § 180.40; People v. Reeves, 23 Misc 3d 1108 [A] [Table], ___ NYS2d ___, 2009 WL 982181 [U]).
Following the initial filing of the motion, the Court, by letter dated February 20, 2009, advised the district attorney's office that "no facts are set forth to explain how the relief requested is in the interests of justice" and requested a supplemental affidavit "setting forth the facts which . . . support such a conclusion and . . . determination by this Court". A supplemental affirmation was furnished by the district attorney. Both affirmations in support of the motion consisted almost exclusively of conclusory allegations summarily stating that the defendant does not have a "significant criminal history", the defendant and the alleged victim are married and "have children in common", "[t]he victim wants the defendant to address his anger issues through counseling", a felony conviction could prevent the defendant "from supporting his family", and that "the victim feels the defendant's criminal conduct was an isolated incident and the defendant has accepted responsibility for his criminal conduct". In addition to noting that neither a copy of the defendant's criminal history nor the specifics of that history was provided, the Court also recognized that "[i]t is not uncommon in domestic violence cases for the defendant and the alleged victim to have children together, or to be concerned about the impact of a felony conviction upon their respective finances and personal relationship", that such circumstances "often result in an unwillingness on the part of an alleged victim to pursue criminal charges", and that "such a reluctance may be indicative of controlling or manipulative behaviors on the part of an abusive partner and the victim's minimization of abuse ( Leidholdt, Dorchen, Interviewing Battered Women, pages 12-15, 22, and Reichler, Judith, Representing a Victim of Domestic Violence Who Needs Child Support, pages139-140 [Lawyer's Manual on Domestic Violence, 5th Edition])." As to a sentence of incarceration which could adversely affect the defendant's employment, there is no indication that the defendant has a prior felony conviction, and therefore a conviction on one or both felony charges would not necessarily result in such a sentence since probation or conditional discharge would be available alternative sentences ( Penal Law § 65.00[3][a][i]; § 65.05[3][a]). Even if incarceration would be the most appropriate sentence, intermittent incarceration ( Penal Law § 85.00) could be imposed to insure that the defendant did not lose his employment.
By letter dated April 27, 2009, defendant's counsel requested a conference "concerning the disposition and future course of this matter". That request was denied because no facts were provided justifying a conferenceabsent the filing of an indictment or an agreement to waive indictment and consent to the filing of a superior court information. In the interim, this Court suggested that the matter be presented to the grand jury for a determination "whether an indictment should issue, a prosecutor's information charging a misdemeanor should be filed, or perhaps a finding of dismissal should be made". Rather than so proceed, the district attorney filed a prosecutor's information dated May 20, 2009 with the local criminal court charging the defendant with criminal mischief in the fourth degree. On June 10, 2009 the defendant's counsel and the district attorney appeared in local criminal court and advised that court of a pending plea agreement to the misdemeanor charge and that the felony charges would "be dismissed at the County level". The case was adjourned to June 24, 2009, at which time the defendant appeared with counsel, pled guilty to the misdemeanor charge, and was sentenced to three years probation. A three year order of protection requiring the defendant to refrain from assault, stalking, harassment, etc. against the victim was also issued, specifically noting that it covered not only the misdemeanor conviction but the pending felony charges as well. Based upon these events, the district attorney now requests that this Court exonerate the $20,000 bail bond issued in connection with the undisposed felony charges.
The Court's May 8, 2009 letter to counsel stated:
"I have considered your request for a conference. Such request suggests that facts, still unrevealed to this Court but sufficient to justify some reduction of the current charges now lodged against your client, would be disclosed. When the motion was first made for the return of this criminal action to local criminal court, I requested a supplemental affidavit setting forth facts justifying such a result. After receiving that affidavit, I again requested "any other additional facts" to support the motion. None were provided. Either there is no other information to be imparted at a conference, or there is relevant information which is of such a secret nature that no one wishes to put it in writing.
Under these circumstances, I do not see how a conference would be fruitful. The District Attorney can present the case to the grand jury which, after hearing the witness(es) and considering all of the evidence presented, can determine whether an indictment should issue, a prosecutor's information charging a misdemeanor should be filed, or perhaps a finding of dismissal should be made. If you and the District Attorney's office come to an agreement for a superior court information, I will review and consider the same."
For the reasons that follow, the application to exonerate bail is, and must be, denied since the district attorney lacked legal authority to file a prosecutor's information and the local criminal court was without jurisdiction to entertain and dispose of the misdemeanor charge.
A prosecutor's information ( CPL § 1.20[6]) may only be filed with a local criminal court in certain limited instances ( CPL § 100.10[3]): at the direction of a grand jury pursuant to CPL § 190.70; at the direction of a local criminal court after reducing a felony charge under CPL § 180.50 or after a felony hearing held pursuant to § 180.70; on the district attorney's own initiative when authorized by CPL § 100.50; and at the direction of a superior court upon motion to dismiss an indictment for insufficient evidence where the evidence is not legally sufficient to establish the defendant's commission of an offense charged in any count of the indictment but is legally sufficient to establish his/her commission of an offense other than a felony. Here, the prosecutor's information was filed "at the district attorney's own instance"( CPL § 100.10[3]) and is thereby limited to the situations authorized in CPL § 100.50. Under CPL § 100.50, a prosecutor's information may be filed only to supercede an "information", a "prosecutor's information" or a "misdemeanor complaint", none of which may contain a felony charge ( see CPL § 1.20[4], [6] and [7]). "There is no provision in the Criminal Procedure Law allowing the District Attorney on his own volition without any direction from the court to replace a felony complaint with a prosecutor's information" ( People v. Thomas, 107 Misc 2d 947, 436 NYS2d 153, 154; see also People v. Patterson, 148 Misc 2d 528, 538, 561 NYS2d 502, 509; People v. Young, 123 Misc 2d 486, 489, 473 NYS2d 715, 718). Moreover, a prosecutor's information "commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in local criminal court" ( CPL § 100.10[3]). Since the instant criminal action was commenced by the filing of the felony complaints almost one year ago, the recent filing of the prosecutor's information cannot serve to start a new action or supercede the felony complaints.
When a felony complaint is filed, a local criminal court only has "preliminary jurisdiction . . . subject to divestiture thereof by the superior courts and their grand juries"( CPL § 10.30[2]). "Preliminary jurisdiction" means only that "a criminal action for . . . [an] offense may be commenced therein, and . . . such court may conduct proceedings with respect thereto which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof" ( CPL § 1.20[25]). "Trial jurisdiction", meaning the "authority to accept a plea to, try or otherwise finally dispose of . . ." ( CPL § 1.20[24]) an accusatory instrument, is, for felony offenses, vested exclusively in superior court (i.e., the supreme or county court) ( CPL § 10.20[1][a]). "The Justice Courts are local criminal courts ( CPL 10.10) and, as such, possess trial jurisdiction of all offenses other than felonies and preliminary jurisdiction over all offenses, subject to divestiture by a superior court ( CPL 10.30). "While preliminary jurisdiction is independent of trial jurisdiction, even preliminary jurisdiction does not exist unless a criminal action may be commenced within the court with respect to the offense" ( People v. Hickey, 40 NY2d 761, 762, 390 NYS2d 42, 44, 358 NE2d 868, 869).
"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 AD2d 83, 89-90, 463 NYS2d 838, 843 [abrogated on other grounds, Morgenthau v. Roberts, 65 NY2d 749, 492 NYS2d 21, 481 NE2d 561]; see also CPL § 180.30[1] providing that "[u]ntil such papers are received by the superior court, the action is deemed to be still pending in the local criminal court"). And "[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 NYS2d 855; People v. Fulcher, 97 Misc 2d 239, 411 NYS2d 167)" ( People v. Simmons, 180 Misc 2d 1006, 1008, 694 NYS2d 305, 307).
Application of these legal principles to the facts here establishes that the Ticonderoga town justice court was divested of jurisdiction over this criminal action on September 15, 2008 by the filing with the clerk of this Court of the requisite papers ( CPL § 180.30[1]), and that the prosecutor's information was patently invalid. Because no legal authority exists for the filing of the prosecutor's information here and no order of this Court has been issued re-vesting jurisdiction, the local criminal court lacked preliminary and trial jurisdiction over the misdemeanor charge alleged in that information and therefore could not legally accept a plea to, or otherwise dispose of, that charge except to dismiss it. The local criminal court also lacked trial jurisdiction to effectuate a disposition of the felony complaints by accepting a plea to the misdemeanor charge in the defective prosecutor's information. Thus, the prosecutor's information filed here was and is a nullity, the defendant's misdemeanor conviction is void, and the felony charges remain pending subject to further proceedings in accordance with CPL Articles 190 or 195 or, alternatively, possible dismissal pursuant to CPL § 30.30 or § 180.85. The $20,000 bail bond previously posted shall remain effective and binding until proper termination of the criminal action ( CPL § 520.20[3]).
IT IS SO ORDERED.