130 Misc. 2d 1058 | N.Y. Sup. Ct. | 1986
OPINION OF THE COURT
What is the utility of a significant decision if nobody knows about it?
Defendant’s motion to dismiss a bail-jumping indictment on Statute of Limitations grounds raises two perplexing issues: (1) is bail jumping a continuing offense and (2) how is attention focused on a clear appellate court precedent of which neither the prosecution nor defense bar is aware and which is unlikely to be discovered?
FACTS
On November 3, 1977, Tyrone Barnes was arrested for a narcotics sale. Indicted by the Special Narcotics Grand Jury on November 15, 1977, for criminal sale of a controlled
Barnes was ultimately returned on the bench warrant on November 26, 1985. He was indicted for bail jumping in the second degree on December 4, 1985.
THE CONTENTIONS
The defendant contests the viability of the bail-jumping indictment on the ground that the eight-year hiatus between the commission of the crime and the filing of the indictment renders such indictment untimely in light of the five-year Statute of Limitations set forth in CPL 30.10 (2) (b).
ANALYSIS
The provision under which the defendant is charged reads as follows: "A person is guilty of bail jumping in the second degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a charge against him of committing a felony, and when he does not appear personally on the required date or voluntarily within thirty days thereafter.” (Penal Law § 215.56.)
The lower court cases which have addressed the issue of whether bail jumping is a continuing offense have reached diverse holdings. In People v Ingram (74 Misc 2d 635) the court found that bail jumping is a continuing crime and remains unabated until the defendant is returned to the jurisdiction of the court. According to Ingram, the Statute of Limitations does not begin to run until the defendant appears or is apprehended. Justice Goldfluss, analyzing Penal Law
In People v McAllister (77 Misc 2d 142), the opposite conclusion was reached. There, the court held that bail jumping is not a continuing crime but that it is committed on a date certain; on the 31st day following the defendant’s nonappearance, the crime is complete and the Statute of Limitations begins to run. Rejecting Ingram’s (supra) interpretation of Penal Law § 215.59, the McAllister court reasoned that the effect of the affirmative defense section is merely to shift the burden to the defendant to show that his failure to respond was unintentional and uncontrollable. It is not indicative of the Legislature’s desire to make bail jumping a continuing crime. Conceding that the bail-jumping statute is somewhat ambiguous with regard to legislative purpose, McAllister relied on the precept that " '[s]ince the continuing-offense concept too freely applied can lead to tension with the * * * statute of limitations, we should undoubtedly approach the task of statutory interpretation with "a presumption against a finding that an offense is a continuing one” ’ ” (supra, at p 148, citing Toussie v United States, 397 US 112, 135; see also, People ex rel. Barnes v Warden, 75 Misc 2d 291, 293 [the crime of bail jumping is not a continuing one]).
In my view, the Ingram (supra) conclusion that the Legislature intended to create a continuing offense because the defendant is duty bound to appear beyond the 30th day is
This "status vs. crime” distinction applies in analogous contexts. For example, when a person commits bigamy, the crime is complete when he engages in the second marriage illegally. While he continues to be a bigamist as long as the illegal marriage continues, for Statute of Limitations purposes, the crime occurred upon entering the second marriage. Thus, a person accused of bigamy may only be prosecuted within five years of the illegitimate union (see, People v Reiser, 240 App Div 36, 40, holding that bigamy is not a continuing offense).
Another analogy relates to the draft dodger. In Toussie v United States (supra), the Supreme Court held that the defendant’s failure to register for the draft upon his 18th birthday or within five days thereafter was not a continuing offense. While the individual continues to have a duty to register and maintains the status of one who has violated that duty, in the absence of Congress’ clear expression to the contrary, the five-year Statute of Limitations begins to run at the initial failure to sign up. "[T]here is nothing inherent in the nature of failing to register that makes it a continuing offense.” (397 US, at p 122; see also, Brown v Ohio, 432 US 161,169, n 8.)
I find that the New York Legislature similarly did not draft the bail-jumping statute to provide for a separate crime for each day that the defendant fails to appear in court. Had such a construction been intended, the statute need only have stated that each day a defendant is absent, a distinct offense is committed. Lawmakers have not hesitated to define crimes as continuing offenses, in unambiguous terms, when that is the desired effect. (See, People v Fremd, 41 NY2d 372, 374, where
Thus, while the draft dodger remains a draft dodger, and the bigamist continues to be a bigamist and the bail jumper remains a bail jumper, the respective crimes are complete as of specific dates and the Statute of Limitations runs from those dates.
SHEPARD DOES NOT LEAD
If the three lower court cases discussing the Statute of Limitations as it relates to bail jumping were "Shepardized”, no appellate court cases would be discovered. Similarly, a search of McKinney’s Consolidated Laws of New York for a higher court precedent would be fruitless. Yet the Appellate Division, First Department, has definitively ruled on this question. In People v Martinez (60 AD2d 551 [1st Dept 1977]), the Appellate Division expressly held that bail jumping is a single, noncontinuous offense. "[B]ail jumping * * * is defined simply as nonappearance on a required date” (p 551). Counsel’s failure to find the Martinez decision is understandable, since the commonly used and most expedient research tools are not helpful in this instance. For example, if one consults McKinney’s Consolidated Laws of New York, Book 11A annotations to CPL 30.10 under the topic "bail jumping — continuing nature of offense,” the case is not listed. Nor is it cited in the McKinney’s Consolidated Laws of New York, Book 39 annotations to the Penal Law §§ 215.56, 215.57, or 215.59. Finally, reference to "limitations of prosecution — continuing offenses,” in Criminal Law, West’s New York Digest 3d, vol 9, key Nos. 149-150 does not reveal the Martinez decision.
The reason why it is so difficult to find this short memorandum opinion is simple. The Martinez (supra) case did not involve the Statute of Limitations. Rather, it related to the
CONCLUSION
The Legislature’s failure to expressly incorporate a continuing offense theory compels the finding that bail jumping is a single offense, regardless of its duration. The prosecutor may not avoid the plain meaning of Penal Law § 215.56, by the simple expedient of parsing a single offense into a series of continuous acts. A defendant’s failure to appear on a required date is not transformed into continuous crime merely because that failure extends over a considerable period of time. The People could avoid this problem by simply indicting the defendant or drawing a felony complaint within the five-year period, thereby tolling the Statute of Limitations.
Accordingly, the defendant’s motion to dismiss the bail-jumping indictment as untimely is granted.
. CPL 30.10 (2) (b) provides: "A prosecution for any * * * felony [other than a class A felony] must be commenced within five years after the commission thereof’.
. Penal Law § 215.59 states in part:
"In any prosecution for bail jumping * * * it is an affirmative defense that:
"1. The defendant’s failure to appear on the required date or within thirty days thereafter was unavoidable and due to circumstances beyond his control; and
"2. During the period extending from the expiration of the thirty day period to the commencement of the action, the defendant either:
"a. appeared voluntarily as soon as he was able to do so, or "b. although he did not so appear, such failure of appearance was unavoidable and due to circumstances beyond his control.”