121 Misc. 2d 762 | N.Y. City Crim. Ct. | 1983
OPINION OF THE COURT
Defendant moves pursuant to CPL 30.30 and 30.20 to dismiss this action. She has been at liberty on $500 bail since April 27, 1983, two days after her arraignment. She had been arrested on April 23, 1983, and arraigned two days later on a misdemeanor complaint charging petit larceny (Penal Law, § 155.25) and criminal possession of stolen property, third degree (Penal Law, § 165.40).
The original pleading was sworn to by SPO Benjamin Maner. It set forth hearsay from informant “Brenda Humphrey”, a Macy’s store detective, that defendant committed these crimes at 151 West 34th Street, County of New York (the address of Macy’s), on April 23,1983, at 4:05 p.m. The case was adjourned to April 29, 1983 (which would have
A supporting deposition dated April 28, 1983 was also filed on the 170.70 day. It was executed, under the form notice authorized by CPL 100.30,
The case was next calendared for the People to respond to defense motions on May 31, 1983. On that date the People reported that this was actually a Macy’s occurrence. Yet another adjournment to June 9, 1983, chargeable to the People, was required for their response. The response and bill of particulars filed that date alleged that Macy’s was the place of occurrence, and Brenda “Humphries” of Macy’s was the person who recovered the property. The case was again adjourned to July 19,1983, when it was put over for trial to August 2, 1983. Meanwhile, SPO Maner, on July 19, 1983, had sworn to yet a third complaint. This one alleged that the same crimes involving the same merchandise had occurred at 151 West 34th Street after all.
The branch of the motion, resting on CPL 30.20 and the Sixth Amendment to the United States Constitution, is denied out of hand. Defendant makes no attempt to show any prejudice from the passage of 99 days since the commencement of the action. She has suffered no extended incarceration as a result of these charges. Any delays attributable to the People are minimal. (See People v Taranovich, 37 NY2d 442.)
The other branch of this motion presents only one issue:
Upon closer analysis, the erroneous belief of the prosecutor fails to qualify as an exceptional circumstance. This excuse in substance asserts that the prosecutor delayed in clarifying the facts. The court papers reveal that the People were aware of a conflict in the facts as early as April 27, 1983, when the second complaint was filed together with a supporting deposition. They have only themselves to blame for failing to launch an investigation by interviewing the store personnel, arresting police officer and SPO Maner in order to nail down the actual place of the alleged shoplift and place of the defendant’s arrest. The repose in the prosecutor’s investigation hardly amounts to an exceptional circumstance that qualifies under CPL 30.30 (subd 4, par [g]). (See People v Washington, 43 NY2d 772, 774 [“The statutory exception * * * must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it.”]) By contrast, exceptional circumstances have been found when the complainant or other material witness was unavailable for medical reasons (People v Goodman, 41 NY2d 888; People v Marshall, 91 AD2d 900, 901); when the victim was out of the country and the People acted with due diligence to effect her return (People v Green, 90 AD2d 705, 706); for the unavailability of evidence from a codefendant during the time he was
To conclude that CPL 30.30 (subd 4, par [g]) is inapplicable is not to end the matter. The defendant’s resort to People v Colon {supra) must now be scrutinized. Judge Atlas reasoned in that case (110 Misc 2d, at p 920):
“The Criminal Court clearly has no jurisdiction to take to trial a defendant who is charged only by a complaint and who has not waived the filing of a sufficient information * * * Without his having provided the court with a basis for exercising such jurisdiction the District Attorney cannot be ready for trial in a misdemeanor case * * *
“Responsibility to confer upon the Criminal Court jurisdiction to try misdemeanor cases rests squarely upon the shoulders of the District Attorney. Like any other prosecuting litigant in an action of any nature (civil as well as criminal) he must file an accusatory instrument sufficient in its allegations to give the court reason to exercise its jurisdiction.” (Emphasis in original.)
Manifestly, in the case at bar we have had since the “170.70 day” one or another jurisdictionally sufficient instrument on which the People could announce ready and proceed to trial. The rule in Colon has been satisfied.
It may be helpful in understanding why Colon (supra) has been complied with to analyze procedurally the two informations in this case and the effects of their filing. The complaint and supporting deposition filed on April 29, 1983 (“170.70 day”) contained an accusatory part charging sections 155.25 and 165.40 of the Penal Law. The factual
This error in naming the correct store and informant was only a formal error. It could have been corrected without SPO Maner swearing to a new complaint. CPL 200.70 (subd 1) specifies in pertinent part: “At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits.” This provision applies to prosecutor’s informations (CPL 100.45, subd 2), but not expressly to other informations. (Compare CPL 100.45, subd 2, with subds 1, 4; but see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 100.45, p 89.) By implication arising from CPL 170.35 (subd 1, par [a]), however, this provision applies to informations and other accusatory instruments (People v Parris, 113 Misc 2d 1066, 1069, n 4, supra; cf. People v Pacifico, 105 Misc 2d 396, 400). Indeed, informations have been amended as to matters of form merely on motion of the prosecutor. Another justification for this
Yet, the People did not choose this procedural course. Instead, they filed a third complaint and supporting deposition which they label a “superseding information”.
This was not a situation where the prosecutor could not be ready for trial for lack of “an accusatory instrument sufficient in its allegations to give the court reason to exercise its jurisdiction.” (People v Colon, 110 Misc 2d, at p 920.) Rather, the circumstances are as described by Denzer (Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 100.50 [1971 ed], p 413) when he wrote
In the case at bar, the only changes between instruments are formal and nonsubstantive. Consequently, the defendant could not argue that time excludable under CPL 30.30 (subd 4) with respect to the first information should not also apply to the “superseding” information. Indeed, such an argument would rest on the theory that the People could not announce their readiness for trial on the earlier, erroneous pleading. But, we have already discovered that no jurisdictional impediment (as in People v Colon, supra) inhibits such announcement. And, if the case proceeded to trial on the erroneous pleading, CPL 200.70 (subd 1) authorizes, even “during trial,” an amendment to cure “defects, errors or variances from the proof” as to such “matters of form”. (See, e.g., People v Spann, 56 NY2d 469 [amendment at trial authorized to change the specification of items alleged to be stolen]; People v La Boy, 91 AD2d 1102, supra [amendment during jury selection permitted to delete as surplusage language, not necessary to state the elements of the crime, describing defendant’s activities preceding the assault]; People v Robinson, 71 AD2d 779 as at bar, and People v Cruz, 285 App Div 1076 [amendments allowed to change name of victims of assaults; in Robinson as at bar, correct name had been set forth in a bill of particulars]; People v Scanlon, 132 App Div 528, supra [amendment at trial to change name of town where crime occurred; defendants’ trial preparation must have acquain
While the controlling distinction between People v Reid (supra) and the case at bar involves the difference between changes of substance and of form, this is merely fortuitous. Thus, what I said in Reid (110 Misc 2d, at p 1087) regarding the People’s readiness applies equally here
Nevertheless, the defendant’s motion is denied.
. This allegation was surplusage since it was unnecessary to the statement of the elements of the crimes charged/ (See People v La Boy, 91 AD2d 1102.)
. Nineteen pairs of panties and 13 slips of the value of $455.
. The form notice states “False statements made herein are punishable as a Class A misdemeanor pursuant to section 210.45 of the penal law.” That section provides: “A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.”
. This complaint bore the typed address, “611 5th Ave.”, but that address was inked over and “151 W. 34th St.” was penned in next to the deletion. I presume SPO Maner made this change although his initials do not appear. Lamentably, the county of occurrence is omitted from this third pleading (in contrast to its predecessors); but that can be supplied by motion of the prosecutor. (CPL 200.70; cf. CPL 100.45, subd 2.)
. Defendant makes no effort to charge the People with more than 90 days of nonexcludable delay on any ground other than their failure to convert the pleading within that period.
. The People also argue for a cutoff date of July 17,1983 if the court finds they are chargeable with the time prior to the correction of the erroneous pleading. In this they err because the time must be measured to the date of filing, not execution, of any curing document. (People v Ryff, 100 Misc 2d 505, 509; cf. CPL 100.20.)
. Discussion of this issue in no way should be taken as an acceptance of the proposition that any of the exceptions of subdivision 4 would apply where the People have failed to secure a supporting deposition in violation of the rule in People v Colon (110 Misc 2d 917). (Compare People v Sturgis, 38 NY2d 625, with People v Williams, 56 NY2d 824.)
. See n 3, supra. The supporting deposition (CPL 100.20) with its form notice (CPL 100.30, subd i, par [d]) are treated with great solemnity and relied upon by the court. Valuable rights depend on the authenticity and veracity of these documents. Indeed, had defendant Twine failed to post bail she would have remained incarcerated due to the perjurious supporting deposition executed by Brenda Humphrey. (CPL 170.70.) Therefore, this court expects that the District Attorney will perform his duty and prosecute this crime which appears to have been committed by Brenda Humphrey and thereby vindicate not only the legislative will expressed in section 210.45 of the Penal Law, but also the sanctity of supporting depositions.
. Perhaps they preferred this procedure because SPO Maner’s complaint had mentioned in the factual part that the informant was a Saks store detective. (Cf. CPL 100.15, subd 1 [“(t)he complainant’s verification * * * is deemed to apply only to the factual part * * * and not to the accusatory part.”]) It is only an amendment to the accusatory part of an “information” that the prosecutor is specifically authorized to seek. (CPL 100.45, subd 2.)
. See discussion p 765, supra.