People v. Han

• Decision Date: 24 July 1995
• Docket Number: AP-5
• Citation: 632 N.Y.S.2d 748,166 Misc.2d 246
• Parties: PEOPLE of the State of New York, Plaintiff, v. Kwan HAN, Defendant
• Court: New York City Court

Page 748

632 N.Y.S.2d 748

166 Misc.2d 246

PEOPLE of the State of New York, Plaintiff, v. Kwan HAN, Defendant.

Criminal Court of the City of New York,

Bronx County, Part AP-5.

July 24, 1995.

Blatt & Koppelman, P. C., Nanuet (Ronald S. Koppelman, of counsel), for Defendant.

Robert T. Johnson, District Attorney of Bronx County, Bronx (David Staton, of counsel), for Plaintiff.

GEORGE B. DANIELS, Judge.

The defendant, Kwan Han, is charged with possession of a gambling device (Penal Law § 225.30[2]. He now moves to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30.

On August 25, 1994, the defendant was issued a desk appearance ticket (hereinafter DAT) which required him to appear in AR-2 on July 26, 1994. The defendant maintains that he appeared on the return date of the DAT, and since his name did not appear on the court's calendar, he reported to room M-38, the court's DAT office. There, the defendant was advised by a Police Administrative Aide (hereinafter PAA) that the People failed to file an accusatory instrument thereby necessitating the adjournment of the case until October 24, 1994. He further contends that he was informed by a PAA on two subsequent occasions i.e., October 20, 1994 and November 21, 1994, that the case was being adjourned until October 24, 1994 and December 20, 1994, respectively as no complaint had been filed. He claims that he again contacted the court's DAT office on December 20, 1994, January 20, 1995 and February 24, 1995, each time being advised that the case was to be adjourned because the People were unable to proceed. On March 30, 1995, the People finally filed the accusatory instrument which revealed that it had been signed by the deponent on October 19, 1994.

There is a sign on the door of AR-2 instructing a defendant who is unable to find his name on the court's daily calendar, also posted on the door, to report to room M-38. At the DAT office, a defendant learns whether or not the People have filed an accusatory instrument against him, and if they have not, gives the accused an adjourn date for his case. The defendant is then instructed to contact the personnel in the DAT office, just prior to the adjournment date, to determine whether the People have filed the necessary papers and if not, what the new adjournment date will be.

The People do not contradict defendant's chronology of events nor do they claim that the defendant did not comply with the court-established procedure for handling undocketed DATs. Rather, they argue that the defendant failed to present himself in AR-2 as required by the DAT, but went instead to the DAT office thereby tolling the speedy trial clock from running.

Since the defendant is charged with an "A" misdemeanor, punishable by a sentence of imprisonment of more than three months, the People are required to be ready for trial within 90 days of the commencement of the criminal action (see, CPL 30.30[1][b]; Penal Law § 70.15[1] ). Generally, an action commences, for speedy trial purposes, with the filing of an accusatory instrument (see, CPL 1.20[17]; 100.05; People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793). An exception to this rule exists, however, with regard to the commencement of an action where the accused is issued a DAT. Specifically, CPL 30.30[5][b] provides, "... where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket." The speedy trial clock begins to run when the defendant first appears in court even if the People do not file an accusatory instrument until a later date (see, People v. Parris, 79 N.Y.2d 69, 580 N.Y.S.2d 167, 588 N.E.2d 65; People v. Vescur, 134 Misc.2d 574, 511 N.Y.S.2d 997).

The People maintain that the defendant did not fulfill his appearance obligation since he did not appear before the judge in AR-2 as the DAT directed him to do. Such a position ignores the fact that the court would not call the case as it lacks both in personam and subject matter jurisdiction due to the fact that no accusatory instrument had been filed (see, People v. Byfield, 131 Misc.2d 884, 502 N.Y.S.2d 346; People v. Rodriguez, 90 Misc.2d 356, 394 N.Y.S.2d 542; see also, People v. Goldberg, N.Y.L.J., Dec. 21, 1994, at 24, col. 4). It has become common practice for the People not to file a complaint prior to or on the return date specified in the DAT even though required to do so by statute (see, CPL 150.50)....