Opinion
No. 2013–78172.
09-18-2014
PEOPLE of the State of New York, Plaintiff, v. Kyle J. ROBINSON, Defendant.
Tompkins County District Attorney's Office, Assistant District Attorney Brad Rudin, Ithaca, NY. Jerome M. Mayersak, Ithaca, NY.
Tompkins County District Attorney's Office, Assistant District Attorney Brad Rudin, Ithaca, NY.
Jerome M. Mayersak, Ithaca, NY.
Opinion
SCOTT A. MILLER, J.
The Defendant, Kyle J. Robinson, is charged with one count of Petit Larceny (Penal Law § 155.25 ). Defendant was initially arraigned on December 13, 2013 on a Felony Complaint charging him with Grand Larceny in the Fourth Degree (Penal Law § 155.30[1] ). At the arraignment with counsel, the Defendant waived the preliminary hearing. The six month statutory speedy trial deadline was June 12, 2013. No Grand Jury Proceedings were held, and on May 20, 2014, the People filed a Prosecutor's information charging the Defendant with one count of Petit Larceny in violation of Penal Law § 155.25, an A misdemeanor, alleging that on April 30, 2013, in the City of Ithaca, the Defendant stole property. On that same day, the Honorable Judith A. Rossiter, former Ithaca City Court Judge accepted the Prosecutor's information and signed an order reducing the charge pursuant to N.Y. CPL § 180.50. Also on May 20, 2013, the People filed a statement of readiness.
On July 16, 2014, the Defendant filed a motion to dismiss the case pursuant to CPL § 170.30[1][e] and CPL § 30.30[1], arguing that the People's announcement of readiness for trial filed with their CPL § 180.50 motion on May 20th was “illusory,” relying on the case People v. Stoneburner 129 Misc. 2nd 722 (Syracuse City Court, 1985). The Defendant stipulates that pursuant to CPL § 180.50, the applicable time period for the People to state readiness for trial after a felony is reduced to a misdemeanor is six months.
Notwithstanding the procedures outlined in Criminal Procedure Law § 180.50, the District Attorney has the power to reduce a felony to a misdemeanor without Court or the Defendant's approval. People v.. Harris, 148 Misc. 2nd 408 [NY Co Crim Ct 1990].
The People may effectively state readiness prior to arraignment. People v. Correa 77 N.Y. 2nd 930 (1991). “In the absence of proof that the readiness statement did not accurately reflect the People's position ... the People have discharged their duty under CPL § 30.30.” People v. Carter, 91 N.Y. 2nd 795, 799 (1998). “The fact that the People first declared that they were ready before Defendant was arraigned does not result in an illusory declaration.” People v. Jacob 45 AD 3rd 883, 884 (3rd Dept 2007). Furthermore, the Carter court explained:
Responsibility for scheduling an arraignment date and securing a Defendant's appearance lies with the Court, not the People. Consequently, the People cannot be charged with the delay between the People's pre-arraignment declaration of readiness and Defendant's arraignments. Carter, supra, at 799
While the People may satisfy the readiness requirement by so stating in open court, the People may also satisfy the statement of readiness requirement by filing a statement with the Court and serving a copy on Defense counsel. People v. Smith, 82 N.Y. 2nd 888 (1985) ; see also People v. Kendzia, 64 N.Y. 2nd 331 (1985). The People did so here. The Defendant does not argue that the People have acted in bad faith, nor has he claimed that the People are not, in fact, ready.
Here, the People have filed a valid Prosecutor's information reducing the charge to a misdemeanor. In the Stoneburner case, on which the Defendant relies, the People had merely filed a “written memorandum recommending a reduction of the charge.” People v. Stoneburner 129 Misc. 2nd 722, 723 (Syracuse City Court 1985). In that case, the Court did not make reduction notations, had not received a proposed order, had not received a Prosecutor's Information, and the matter was not scheduled on the calendar on the day the Assistant District Attorney attempted to bring the memorandum to the Court's attention. That day also happened to be the last day before the limit on a timely prosecution would expire. The Defendant and her attorney were not present when the reduction and readiness statements were made for the record on that day, and Defendant did not waive the filing of a new accusatory instrument. The Court characterized the People's procedure here as “little more than an 11th hour attempt to comply with the six month time limitation” id. at 724.
CPL § 180.50[4](d) provides that
[U]pon the filing of an information, a Prosecutor's information or a misdemeanor complaint pursuant to this section, the Court must dismiss the felony complaint from which such accusatory instrument is derived. It [the Court] must than arraign the Defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in § 170.10.
CPL § 170.10 provides that “following the filing with the local Criminal Court of an information, a Prosecutor's information for a misdemeanor complaint, the Defendant must be arraigned thereon.” In this case, the Defendant was arraigned on the Prosecutor's information on June 13, 2014. The People had reduced the charge, and timely stated readiness on May 20, 2014, doing all that was required of them to bring the case to the point in time where it maybe tried. Although the Court signed the CPL § 180.50 reduction on May 20, 2014, the same day the People filed the reduced charge, even if the court had delayed, any such ministerial delay would be excludable from the People's CPL § 30.30 time. People v. Harley 33 Misc. 3rd 567 [NYC Crim Ct 2011]. Any delay in arraignment on the new charges was not chargeable to the People. Defendant's motion is DENIED.
Here on May 20, 2014, the People filed a proposed CPL § 180.50 reduction order, filed a misdemeanor Prosecutor's Information and filed a statement of readiness (which statement the People served on Defense counsel).
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This matter is scheduled for a Pre–Trial Conference on Monday, October 20, 2014 at 9:00 a.m.
This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.