77 Misc. 2d 142 | N.Y. City Crim. Ct. | 1974
Oliver Wendell Holmes once wrote, in dissent: “ I do not suppose that civilization will come to an end ¡whichever way this case is decided. But as the reasoning which prevails in the mind of the majority does not convince me * * * I think it proper to express my views.”
The defendant here was charged originally with petty larceny (Penal Law, § 155.25) and third degree assault (Penal Law, § 120.00). He was released from custody on his own recognizance iby court order, conditioned upon his reappearance in this court on September 24, 1970. He failed to appear on said date as required. A bench warrant was issued. Nor did he appear within 30 days thereafter. Apparently nothing of a practical nature was done about defendant’s default in appearing for almost three years. On July 28, 1973, defendant was arrested on a more serious unrelated felonious crime: robbery in the first degree (Penal Law, § 160.15). On that date the prosecution additionally filed a misdemeanor complaint against him for second degree bail jumping (Penal Law, § 215.56) for his f ailure to appear on September 24,1970 or voluntarily within 30 days thereafter, as that statute reads.
It is this misdemeanor complaint that is attacked by defendant’s motion to dismiss.
Ingram (74 Misc 2d 635, supra) isays “ no ” to such argument, upholding in essence, the contention of the People that there is no time limitation for prosecuting bail jumping, since the intrinsic crime is continuous, not terminable until the defendant is returned “ to the jurisdiction of the court It is only then, the claim is, that the prescribed time limitation begins to run, for defendant has the affirmative duty to return.
Of course, the defendant here should have obeyed the mandate to return on September 24,1970. His disobedience, if purposeful, can never receive the approbation of this or any other court. Yet such lack of legal approval does not obviate the applicability of a Statute of1 Limitations. He is still entitled to the presumption of innocence and is endowed by law with the full gamut of his rightful defenses, including the loss to the People of prosecuting him due to untimeliness. For apparently, the latter may be as much a substantive right in a criminal case as any other defense capable of assertion under the general issue. “ Statutes of limitation in criminal cases * * * create a bar to the prosecution” (People ex rel. Reibman v. Warden of County Jail, 242 App. Div. 282, 284). Their “ purpose * * * in criminal actions is to afford immunity from punishment ” (People v. Steiger, 154 Misc. 538, 541).
Statutes of Limitations represent public policy. They “ limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions.” (Toussie v. United States, 397 U. S. 112, 114.) No court has the right to shorten such fixed period (People v. Katz, 46 Misc 2d 474). Because they are protective statutes, they ‘ ‘ are- to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the Legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. (Hogoboom v. State, 120 Neb. 525; People v. Lord, 12 Hun 282.) ” (People ex rel. Reibman v. Warden of County Jail, supra, p. 284.) The principle that criminal limitations statutes are “to be liberally interpreted in favor of repose ” (United States v.
The People contend — not without logic and reason — that so long as defendant defies his “ affirmative duty * * * to surrender to the jurisdiction of the court whose order is violated” the crime is endless. There are three aspects of error here, I believe.
First, jurisdiction. I doubt whether defendant ever escaped this court’s long and tight jurisdictional grasp. He was always subject, from the day he first appeared on the underlying charge to the time of his arrest on an unrelated charge, to the enforcement of his subsequent necessary appearances. The question of the Statute of Limitations need never have arisen. When the complaint is filed, jurisdiction of the subject matter is complete. It permits a warrant to ibe issued to bring defendant before the court. When he appears — and it does not matter in what manner: by execution of the warrant, by voluntary appearance, by response to a summons, or even by an illegal arrest — the court has jurisdiction over the person of the defendant (People v. Rockwell, 38 Misc 2d 645, 649-650, and notes 7-10 inclusive). The jurisdiction here over the subject matter and person on the underlying charge was fixed. The court was never thereafter deprived; and defendant’s absence, even continuous, could not destroy that jurisdiction. Consequently at any time after the nonappearance of defendant, his default could, by proper enforcement action, effectively have prevented the annulling result of the Statute of Limitations to the instant charge.
Second, defendant’s duty. Both in the People’s brief and in People v. Ingram (74 Misc 2d 635) there are found such statements as: it “ is a continuing duty by the defendant to perform an affirmative act * * * to surrender to the jurisdiction of the court whose order he violated”; “ the defendant Wilson Ingram evaded apprehension and continued to secrete himself ”; that he chose a “ course of unavailability ”; “ the very offense itself consists of defendant’s maintaining his presence a secret in order to avoid prosecution for the underlying crime ”. There is no dispute that defendant here and in Ingram should have obeyed the court order. And while it may be so, no proved facts either in Ingram or here uphold a choice of a “ course
•The question arises: is this a malum prohibitum or malum in se statute ? If the former, and the crime be continuous and not outlawed, this court eventually may be forced willy-nilly to find defendant guilty because of the attached label alone, without proof of his availability and without allowing him to show a valid reason for his nonpresence. The mere words of1 a statute do not determine that it is prohibitum or in se. The distinction between the two classes is nonscientific; and there has never been a real satisfactory differentiation between them. It depends in good measure upon the mores and social thought of the people. And I question whether it is not even possible for the same act to be one or the other, depending upon the circumstances under which the wrongdoer has acted.
The charge here, and by.statute, is a serious Class A misdemeanor. To eliminate the element of intent is drastic, for we were traditionally told that ‘ ‘ intent is always essential to the commission of crime * * * [although] intent may be inferred from the nature of the act ” (People v. Molineux, 168 N. Y. 264, 297). At . least there must be proof that the act complained of “ was done consciously, knowingly and deliberately” (People v. Broady, 5 N Y 2d 500, 505-507). Consequently there should be no dire results from the ineptness of draftsmen in obscuring legislative meaning, objects and goals. My conclusion that this is a 'malum in se statute is not the result of perfunctory treatment nor, I hope, 'of hazy reasoning. Intent, of course, need not be explicit; intent may be inferred by the developed facts.
I do not in any .way condone a defendant’s thumbing his nose at the court. On the contrary, I deplore it. Yet I must accept the wise words of the court in People ex rel. Cosgriff v. Craig (195 N. Y. 190, 197) that “ It is sufficient to say that in cases of doubtful construction or of conflicting statutory provisions, that interpretation should be given which best protects the rights of a person charged with an offense ”. All the more so since the provisions of a penal statute ‘ ‘ must be construed according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). \Section 215.59 does
Third, the continuing nature of the crime charged. This is the crux of the entire matter. Here, for the only time,, there is conflict between the court in Ingram (74 Misc 2d 635, supra) and the District Attorney. The former states there is indication to it “ that it was the intention of the Legislature to create a continuing offense in the charge of bail jumping” and that “intent is spelled out clearly”. The latter admits that the staff comments to the proposed OPL “ do not elucidate the matter” and that “the bail jumping statute itself does not indicate a specific legislative intent in this regard ”. With due deference to the court I accept the District Attorney’s statement of the absence of verbal legislative intent. It is much more realistic. And the one answer to the question of continuous crime is statutory interpretation (Pendergast v. United States, 317 U. S. 412; Bramblett v. United States, 97 U. S. App. D. C. 330).
Toussie v. United States (397 U. S. 112, supra) is a helpful bellwether. Defendant in that case was supposed to register under the Universal Military Training and Service Act (65 U. S. Stat. 75) upon his 18th birthday “ or within five days thereafter ”. He did not do so during that period (June 23 to June 28, 1959) or at any time thereafter. He was indicted on May 3, 1967 for this crime which was subject to a five-year Statute of Limitations (U. S. 'Code, tit. 18, § 3282). The Government argued, in opposition to defendant’s motion to dismiss the indictment as untimely, that although the crime was complete in 1959 ‘ ‘ it continued to be committed each day that Toussie did not register ’ ’. Hence it claimed, as here, that the charge was timely brought.
That reasoning applies as well to this case. Legislative intent is not apparent. The words of this statute do not evince a conclusion other than that arrived at in Toussie. Cases like People v. Cox (286 N. Y. 137); People v. Kirk (62 Misc 2d 1078); People v. Gold Key Club (3 A D 2d 740) do not dilute that conclusion. In those cases the defendants ’ positive acts were for the purpose of gaining a tangible benefit which persisted. Here, defendant’s negative actions resulted in the loss of prosecution by the People. He gained nothing that he did not have originally: the right to be prosecuted within the time limitation of the statute. The People were the losers by not prosecuting in time. Justice Black put it precisely: “ A time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate .suspected criminal activity”. (Toussie, supra, p. 115).
All the People had to do here was, on the 31st day of1 default, to file a complaint and have a warrant issued. That would be the commencement of the bail jumping action (CPL 1.20, subd. 17; 100.05; People ex rel. Reibman, 242 App. Div. 282, 285, supra) and the Statute of Limitations would be effectively tolled. Unfortunately this was not done.
Were this a felony the Grand Jury would be enjoined from indicting unless it were shown that the statute had not run (People v. Lindenborn, 23 Misc. 426), although there is conflict among the holdings as to whether the allegation concerning limitations need appear on the face of the indictment (cf. People v. Brady, 257 App. Div. 1000; People v. Steiger, 154 Misc. 538; People v. Reiser, 240 App. Div. 36; People v. Bailey, 103 Misc. 366; People v. Buccolieri, 91 Misc. 156; People v. Kohut, 36 A D 2d 953). Regardless, the People still have the burden to prove that the statute has tolled (Kirk, Guariglia, Steiger, Brown, supra).
Less particularity is required of a misdemeanor complaint such as this, but its weakness is apparent on its face. No facts about defendant’s amenability to the court’s enforcement of its order are advanced on this motion. Nevertheless the People should not be deprived of the right to show that ‘ ‘ the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence ” so as to avoid the loss of prosecution. To that end I shall hold a hearing on March 4, 1974, in advance of either the preliminary hearing or trial.
On the surface it appears, as in Steiger (supra, p. 541) that “ no action was taken * * * by those interested in [defendant’s] prosecution”; and they are faced as well with the presumption that he was available during the period from his first arrest to the second, both in New York, since “ the law presumes a continuance of the condition until it is shown to have changed. (Nixon v. Palmer, 10 Barb. 175; Mitchell v. United States, 21 Wall. [88 U. S.] 350; Harris v. Harris, 83 App. Div. 123 ”. (People v. Reiser, supra, p. 40.)
The evidence will be confined to the single issue of whether the statute has been tolled within the purview of the statute, and further delimited by my legal conclusion that this is not a continuing crime. If the People fail in this factual burden, this motion will be granted.
. Haddock v. Haddock (201 U. S. 562, 628 [1905]).
. People v. Ingram (74 Misc 2d 635 [1973]).
. These written words may inadequately evidence the much greater amount of time pondering the problem; for disagreement does not come lightly.
. Such a motion is permitted under CPL 170.30, subd. 1, par. [d].
. See, also, People ex rel. Barnes v. Warden of Penitentiary of City of N. Y. (75 Misc 2d 291, 293) where similar statement is made.