Chang v. Rotker

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore BRACKEN; BRACKEN
Citation552 N.Y.S.2d 676,155 A.D.2d 49
Decision Date19 March 1990
PartiesIn the Matter of Michael CHANG, Petitioner, v. Seymour ROTKER, etc., et al., Respondents.

Page 676

552 N.Y.S.2d 676
155 A.D.2d 49
In the Matter of Michael CHANG, Petitioner,
v.
Seymour ROTKER, etc., et al., Respondents.
Supreme Court, Appellate Division,
Second Department.
March 19, 1990.

[155 A.D.2d 50] Schwartz and DiBlasi, Forest Hills (Barry A. Schwartz, of counsel), for petitioner.

John J. Santucci, Dist. Atty., Kew Gardens (Gorden S. Latz, of counsel), pro se.

[155 A.D.2d 60] Before BRACKEN, J.P., and BROWN, RUBIN and BALLETTA, JJ.

[155 A.D.2d 50] BRACKEN, Justice Presiding.

In this proceeding pursuant to CPLR article 78, the petitioner seeks, inter alia, to enjoin the respondent District Attorney from prosecuting an indictment which was filed by a Queens County Grand Jury on March 30, 1989. According to the petitioner, the District Attorney lacks jurisdiction to proceed, because on March 1, 1989, the Criminal Court of the City of New York, Queens County, dismissed a prior accusatory instrument which had been pending in that court and which had included charges factually similar, or identical, to those now contained in the present indictment. The order of the Criminal Court which dismissed that prior accusatory instrument

Page 677

was based on that court's conclusion that the [155 A.D.2d 51] petitioner had been deprived of his statutory right to a speedy trial (CPL 170.30[1][e]; 30.30[5][c]. Since neither constitutional nor statutory law precludes a New York State Grand Jury from indicting a suspect on charges which had previously been dismissed by a local Criminal Court pursuant to CPL 170.30(1)(e), the petition is denied and the proceeding is dismissed.
I

The petitioner Michael Chang was arrested on October 17, 1988, and charged with assault in the second degree, a class D felony (Penal Law § 120.05[3]. He was also charged with two class A misdemeanors: resisting arrest (Penal Law § 205.30) and obstructing governmental administration in the second degree (Penal Law § 195.05). These charges were originally set forth in a felony complaint, an instrument which "serves to commence a criminal action but not as a basis for prosecution thereof" (CPL 1.20[8]; see also, CPL 100.10[5]; 100.05). On October 18, 1988, the petitioner was arraigned upon the felony complaint in the Criminal Court of the City of New York (see, CPL 100.55[2]; 180.10).

On November 14, 1988, the petitioner's attorney appeared in the Criminal Court. At that time, the Assistant District Attorney made an oral application to the court for an order "reduc[ing] the matter to a misdemeanor complaint [by striking] the charge [based on Penal Law] 120.05 [and substituting a charge based on Penal Law] 120.00". The court responded by transferring the matter to a different "part", and it is apparent that both the parties and the Criminal Court itself took this to mean that the prosecution's application had in fact been granted. However, it does not appear from the copy of the original felony complaint which is contained in the record before us that the accusatory portion of this instrument was modified in any way, and it is thus unclear whether the Criminal Court made the "necessary and appropriate changes" in order effectively to convert the instrument from a felony complaint into an information (CPL 180.50[3][a][iii] or into a misdemeanor complaint (CPL 180.50[3][b].

On December 8, 1988, the parties again appeared in the Criminal Court. At this point, the prosecutor served the petitioner with notice that the matter was going to be presented to a Grand Jury (CPL 190.50[5][a]. The matter was adjourned to January 4, 1989, and then again to March 1, [155 A.D.2d 52] 1989. On January 4, 1989, the Criminal Court admonished the prosecutor that the "[c]ase was reduced in November of 1988 [and was] still in misdemeanor form". The Assistant District Attorney did not dispute the court's assertion that the "case" (albeit apparently not the actual accusatory instrument) was "in misdemeanor form".

On March 1, 1989, the petitioner made an oral motion to dismiss the accusatory instrument. The court, as well as both of the parties, apparently treated the accusatory instrument in question as a misdemeanor complaint or information subject to dismissal by the Criminal Court on speedy trial grounds (see, CPL 170.30[1][e]. The Assistant District Attorney, in fact, expressed no opposition to the motion. The Criminal Court, undoubtedly believing that it had no alternative but to do so under these circumstances, granted the motion on the ground that more than 90 days had elapsed since November 14, 1988, that is, the date of the purported conversion of the felony complaint to a misdemeanor complaint or information (see, CPL 30.30[1][b] [90-day speedy trial deadline applicable to certain misdemeanors]; 30.30[5][c] [90 days generally measured from date of reduction of charges].

On March 22, 1989, a Queens County Grand Jury voted to indict the petitioner for the crimes of assault in the first degree (Penal Law § 120.10[2], assault in the second degree (Penal Law § 120.05[3], and resisting arrest. On March 30, 1989, the indictment was filed, and on April 12, 1989, the petitioner was arraigned upon the indictment. The petitioner thereafter made a motion to dismiss the indictment, ostensibly on the grounds that "[t]here exists some * * * jurisdictional or legal impediment to conviction of the defendant for the offense charged" (CPL 210.20[1][h].

Page 678

The precise argument made by the petitioner in support of this motion was that "once a matter has been dismissed pursuant to § 30.30 of the C.P.L. and after the charges having [sic ] been reduced by the People * * * to misdemeanors, the People cannot subsequently indict the defendant as a felon". The People argued that the charges were never effectively reduced, and that the felony complaint was in fact never converted, because the Criminal Court failed to comply with CPL 180.50. The People further argued that the ruling which the Criminal Court made on March 1, 1989, was therefore a "nullity" because the Criminal Court had no jurisdiction to dismiss a felony complaint on speedy trial grounds (see, CPL [155 A.D.2d 53] 170.30), and, therefore, that the charges against the petitioner had in fact never been dismissed.

The prosecution also asserted that the Grand Jury retained jurisdiction to indict the petitioner on felony charges (including a charge identical to the felony which was charged in the original felony complaint) notwithstanding the fact that the Criminal Court had previously dismissed (prior to trial, and on a ground having nothing to do with defendant's guilt or innocence) an accusatory instrument which had been premised on the same criminal transaction. In other words, the People argued that the Grand Jury properly indicted the defendant on felony charges (and one misdemeanor charge) even though such charges were, in part, identical to those contained in a misdemeanor complaint, information or (assuming the acceptance of the prosecution's alternative argument) felony complaint which had previously been dismissed by a local Criminal Court prior to trial.

The Supreme Court, Queens County, denied the motion. In the event that this indictment results in a trial, conviction, and appeal, it is clear that the propriety of that Court's order would be subject to ordinary appellate review. Not content with this prospective remedy, the petitioner now seeks to enjoin the District Attorney from prosecuting the indictment handed up by the Grand Jury, and to enjoin the Justices of the Supreme Court, Queens County, from presiding at any trial of this indictment. For the following reasons, this application must be denied.

II

We should note, initially, that the petitioner's application is procedurally correct. A proceeding pursuant to CPLR article 78 may serve as the procedural vehicle for advancing a claim that prosecution of a criminal case is barred on the basis of statutory or constitutional double jeopardy principles (see, e.g., Matter of Corbin v. Hillery, 74 N.Y.2d 279, 285, n. 3, 545 N.Y.S.2d 71, 543 N.E.2d 714; Matter of Kaplan v. Ritter, 71 N.Y.2d 222, 226-227, 525 N.Y.S.2d 1, 519 N.E.2d 802; Hall v. Potoker, 49 N.Y.2d 501, 505, n. 1, 427 N.Y.S.2d 211, 403 N.E.2d 1210; People v. Michael, 48 N.Y.2d 1, 7, 420 N.Y.S.2d 371, 394 N.E.2d 1134; Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 564, 376 N.Y.S.2d 79, 338 N.E.2d 597). Such proceedings may also serve as the procedural format within which to review claims that a Grand Jury has, in returning an indictment, exceeded its statutory authority (see, e.g., Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 422 N.Y.S.2d 26, 397 N.E.2d 717 [claim that superseding indictment was obtained in violation[155 A.D.2d 54] of CPL 450.50(2) ]; Matter of Vega v. Bell, 47 N.Y.2d 543, 419 N.Y.S.2d 454, 393 N.E.2d 450 [claim that indictment of juvenile was obtained in violation of CPL 180.75(4) ]. The petitioner may therefore bring the instant proceeding, even though the denial of his motion to dismiss the indictment would ordinarily be subject to review on appeal from any judgment of conviction (see,...

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6 practice notes
  • Hoffler v. Jacon
    • United States
    • New York Supreme Court Appellate Division
    • 1 d4 Abril d4 2010
    ...17, 818 N.E.2d 660 [2004]; Matter of Cheatom v. Kreindler, 173 A.D.2d 703, 703, 570 N.Y.S.2d 350 [1991]; Matter of Chang v. Rotker, 155 A.D.2d 49, 54-55, 552 N.Y.S.2d 676 [1990] ).3 Nor are we persuaded that double jeopardy principles are implicated because the fundamental error here-failur......
  • People v. Cooper
    • United States
    • New York Supreme Court — Appellate Division
    • 28 d2 Maio d2 1996
    ...have additional time in which to answer ready for trial in the prosecution of the new charges. In a more recent case, Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676, the Second Department held that a speedy trial dismissal of a misdemeanor prosecution would not bar the subsequent prosecut......
  • People v. Chang
    • United States
    • New York Supreme Court — Appellate Division
    • 28 d1 Outubro d1 1991
    ...length in our prior decision concerning the Page 560 defendant's proceeding pursuant to CPLR article 78 (see, Matter of Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676). For the purposes of this appeal, however, we note the following additional facts. The People announced their readiness o......
  • People v. Paulino, AP-5
    • United States
    • New York City Court
    • 18 d2 Setembro d2 1990
    ...only attaches when a prior [148 Misc.2d 550] prosecution has already proceeded to the trial stage (see, Matter of Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676 Since the initial proceeding against this defendant never reached the trial stage, prosecution is not barred under CPL 40.20 and......
  • Request a trial to view additional results
7 cases
  • Hoffler v. Jacon
    • United States
    • New York Supreme Court Appellate Division
    • 1 d4 Abril d4 2010
    ...17, 818 N.E.2d 660 [2004]; Matter of Cheatom v. Kreindler, 173 A.D.2d 703, 703, 570 N.Y.S.2d 350 [1991]; Matter of Chang v. Rotker, 155 A.D.2d 49, 54-55, 552 N.Y.S.2d 676 [1990] ).3 Nor are we persuaded that double jeopardy principles are implicated because the fundamental error here-failur......
  • People v. Cooper
    • United States
    • New York Supreme Court — Appellate Division
    • 28 d2 Maio d2 1996
    ...have additional time in which to answer ready for trial in the prosecution of the new charges. In a more recent case, Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676, the Second Department held that a speedy trial dismissal of a misdemeanor prosecution would not bar the subsequent prosecut......
  • People v. Chang
    • United States
    • New York Supreme Court — Appellate Division
    • 28 d1 Outubro d1 1991
    ...length in our prior decision concerning the Page 560 defendant's proceeding pursuant to CPLR article 78 (see, Matter of Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676). For the purposes of this appeal, however, we note the following additional facts. The People announced their readiness o......
  • People v. Paulino, AP-5
    • United States
    • New York City Court
    • 18 d2 Setembro d2 1990
    ...only attaches when a prior [148 Misc.2d 550] prosecution has already proceeded to the trial stage (see, Matter of Chang v. Rotker, 155 A.D.2d 49, 552 N.Y.S.2d 676 Since the initial proceeding against this defendant never reached the trial stage, prosecution is not barred under CPL 40.20 and......
  • Request a trial to view additional results

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