Pеtitioner brings this CPLR article 78 proceeding in the nature of mandamus to compel respondent, a Judge of the Criminal Court of the City of New York, to hold a preliminary hearing pursuant to CPL 170.75 on the misdеmeanor charges filed against him by prosecutor’s information filed by direction of the Grand Jury.
Pеtitioner contends that this section mandates that respondent order such hearing upon petitioner’s request, while respondent argues that in the instant case evidence has already been presented to a Grand Jury for consideration and the said Grand Jury found that sufficient evidence exists to hold respondent for trial on misdemeanor charges, and that a prеliminary hearing in criminal court is thus not required. Cited in support thereof is People v McClafferty (
Thus argues the court in MeClafferty (supra), the defendant has been afforded more safеguards of procedural due process
"1. A defendant who has been arraigned in the New York City criminal court upon an information, simplified traffic informatiоn or prosecutor’s information, which charges a misdemeanor * * * may, before entry of a plea of guilty or commencement of trial, request a hearing to determine whether there is reasonable cause to believe that he committed such misdemeanor.
"2. Upon such request, the court must conduct such hearing in the manner prescribed in sectiоn 180.60 for a hearing upon a felony complaint.” (Emphasis added.)
In analyzing this statute, the words thereof must be interpreted in accordance with their plain and ordinary meaning. It is only where suсh language is not clear and explicit, but is ambiguous or otherwise vague that inquiry be warranted outside the language of the statute to construe the legislative intent.
The form and language of the instant statute (CPL 170.75) is clear and unambiguous and such inquiry is not indicated herein. There is nothing apparent or implicit therein to support an interpretation restricting the requirement of a hearing in cases proceeding on a prosecutor’s information whether lodged at the direction of a Grand Jury or by the prosecutor’s initiative. The court may not speculatе that the Legislature implied such an exception in the one case or the other, сontrary to the plain meaning of the words of the statute, especially where this objeсtive, analytic approach would not effect an absurd or unjust result.
To deny the petitiоner a preliminary hearing would deprive him of a substantive right afforded to all misdemeanants whose actions were never presented to a Grand Jury. Though the review criteria may be diffеrent, the preliminary hearing affords a defendant the right to confront his accusers, in an open public forum, to engage in a degree of cross-examination and the right to produсe witnesses (CPL 170.75, subd. 2; CPL 180.60), all of which are not available to him in the in camera secretive setting of the Grand Jury proceeding. The benefits to a defendant cannot be equated by the legalistic and theоretical argument that the Grand Jury would apply a more stringent test to the evidence than wоuld the Judge at criminal court. Moreover, anomalous results of inequity and possible
Aсcordingly, the cross motion to dismiss the petition is denied, and the petition is granted.
Respondent is directed to hold a preliminary hearing upon the charges filed against petitioner.