People v. Armstrong

• Decision Date: 02 July 1992
• Docket Number: JP-1
• Citation: 588 N.Y.S.2d 104,154 Misc.2d 834
• Parties: The PEOPLE of the State of New York v. Theodore ARMSTRONG, Defendant
• Court: New York City Court

Page 104

588 N.Y.S.2d 104

154 Misc.2d 834

The PEOPLE of the State of New York v. Theodore ARMSTRONG, Defendant.

Criminal Court of the City of New York,

Bronx County, Part JP-1.

July 2, 1992.

Robert Baum, The Legal Aid Society (Sharon Aarons, of counsel), Bronx, for defendant.

Robert T. Johnson, Dist. Atty., Bronx County (Victor Brown, of counsel), Bronx, for the People.

DYNDA L. ANDREWS, Judge:

On the eve of trial, 318 days after defendant was arraigned on a felony complaint alleging he beat and punched the complaining witness, causing specified injuries, the prosecutor filed a new information charging that defendant beat and punched the complaining witness with a metal pipe and his fists and slashed him with a knife, causing the same specified injuries. The new information superseded an original assault charge and joined two previously uncharged weapons possession crimes.

While People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986), holds that there is no "logical reason why, when a subsequent indictment is related back to the commencement of the proceeding for purposes of applying the six-month limitation prescribed by CPL 30.30(1)(a) it should not also be related back for the purpose of computing the time to be excluded from that limitation [pursuant to CPL 30.30(4) ] [footnote omitted]", id. at 239, 501 N.Y.S.2d at 794-95, 492 N.E.2d at 1210-11, research reveals no published decision addressing the effect of such a last-minute filing on the prosecutor's prior statements of readiness made for the purpose of having time excluded from the C.P.L. § 30.30 limitation.

The prosecutor in the case at bar urges, without distinguishing between the superseded assault and newly added weapons charges, that the People are chargeable with, at most, 83 days of the applicable 90 day period, C.P.L. § 30.30(1), (5). This argument is based on the prosecutor's position that any time previously excluded, based on a prior statement of readiness, must be excluded under People v. Sinistaj, supra, without consideration of whether that prior statement of readiness could be substantiated at the time it was made.

Defendant counters that all time from June 24, 1991, is chargeable to the prosecutor on both the assault and the newly added weapons possession charges, arguing that People v. Sinistaj, supra, does not apply where, as here, the prosecutor radically changes the theory of the case, because any statements of readiness prior to March 31, 1992, the date the new factual allegations and charges were made, were not made in good faith and could not be substantiated.

Defendant urges that the long delay in alleging the new facts and advancing the new theory of the alleged assault, which also led to the joining of the added weapons possession charges, demonstrates that the prosecutor had not in fact performed the investigation, analysis and legal research required to substantiate any good faith claim that the prosecutor was ready to try the instant case, citing People v. Reid, 110 Misc.2d 1083, 443 N.Y.S.2d 600 (Crim.Ct.N.Y.Co.1981).

A. Underlying Facts

The original felony complaint in the case at bar, charging defendant with assault in the second degree, Pen.L. § 120.05(1), and assault in the third degree, Pen.L. § 120.00(1), alleged that defendant, on May 16, 1991, at approximately 3:20 p.m., at 1851 Schieffelin Place, Apt. 1-D,

... did beat and punch [Carl Wilson Jr.] about the face and head and did cause injury to [Wilson's] hand and arm and teeth. [Wilson] suffered a completely swollen left eye, which was black and blue; lacerations to his hand and forearm, which were bleeding, and loosened teeth ...

Defendant was arraigned on the two assault charges on May 17, 1991. On June 24, 1991, the prosecutor dismissed the felony assault charge for reasons which are not clear from the record.

The complaint was converted to an information on July 31, 1991 upon filing of an affidavit by the complaining witness simply affirming the contents of the original felony complaint. On July 31, the People consented to a "Huntley hearing" and the case was adjourned on the court's motion to September 26, and then on defense counsel's motion to October 4.

On October 4, the prosecutor had no file and the case was adjourned to October 28. The suppression motion was denied after hearing on October 28, and the case was adjourned to November 25 for trial, on which date the complaining witness was absent. The case was adjourned to December 18 with one day marked charged to the People, apparently based on a representation that the prosecutor would be ready to try the case on the next day.

On December 18, the court had no trial parts available and defendant requested an adjournment. Time was marked excluded to February 10.

The prosecutor did not have all required medical records on February 10, or on the next adjourned date, March 25, on which date the complainant also was unavailable. The court adjourned the matter for one day, marking it "FINAL" pursuant to C.P.L. § 30.30, and precluding the prosecution, in the event of trial, from using any medical records it had not previously turned over.

There were no trial parts available until March 30, when the case was sent out for trial.

Prior to commencement of trial on March 30, the prosecutor filed and then withdrew a document entitled "Superseding Information," charging assault in the third degree, Pen.L. § 120.00(1) and two counts of criminal possession of a weapon in the fourth degree, Pen.L. § 265.01(2). The "superseding information" alleged that defendant, on "May 14, 1991 [sic ]," at approximately 3:20 p.m., at 1851 Schieffelin Avenue, Apt. 1-D,

... did beat and punch [Carl Wilson Jr.] about the face and head with a metal pipe and his fists which did cause [Wilson's] left eye to swell completely shut, and did cause said eye to turn black and blue and said blows did loosen and chip [Wilson's] teeth ... [D]efendant did cause lacerations to [Wilson's] hand and fore arm [sic] by slashing [Wilson] with a knife.

The trial was put over to the following morning, at which time the prosecutor refiled the above-quoted "Superseding Information." The case was adjourned for any written applications.

Defendant applied for various relief, including dismissal pursuant to C.P.L. § 30.30. The prosecutor made no applications.

B. Superseding Assault and Compulsorily Joinable Weapons Charges

To properly address the § 30.30 issue, it is necessary to clarify the nature of the new charges.

Neither the accusatory or factual parts of the original information reflect in any way that weapon/s were possessed or used in connection with the incident alleged. Indeed, no such facts or crimes were alleged or adverted to until March 30, 1992, when the "Superseding Information," alleging new facts and including new charges, was filed and withdrawn, and then refiled on March 31, 1992.

The "Superseding Information" in the case at bar does "supersede" the assault charge, Pen.L. § 120.00. However, the two weapons counts fall within neither of the authorized procedures for filing superseding informations:

1. If at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. The first instrument is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second instrument.

2. At any time before entry of a plea of guilty to or commencement of a trial of an information, the district attorney may file with the local criminal court a prosecutor's information charging any offenses supported, pursuant to the standards prescribed in subdivision one of section 100.40, by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it. In such case, the original information is superseded by the prosecutor's information and, upon the defendant's arraignment upon the latter, is deemed dismissed.

C.P.L. § 100.50.

The first subdivision of C.P.L. § 100.50 contemplates a superseding information charging the same offense, perhaps based on different or more complete factual allegations; the second contemplates different offenses charged based on the same facts. See People v. Twine, 121 Misc.2d 762, 768, 468 N.Y.S.2d 559, 564 (Crim.Ct.N.Y.Co.1983) ("supersede" not defined in C.P.L.; only effect of filing set out in C.P.L. § 100.50); see also People v. Cibro Oceana Terminal Corp., 148 Misc.2d 149, 559 N.Y.S.2d 782 (Crim.Ct.Bx.Co.1990) (superseding information need not be supported by factual allegations of instrument it supersedes).

Neither subdivision of C.P.L. § 100.50 provides for "supersedure" on new facts and new charges. Compare People v. Salley, 133 Misc.2d 447, 507 N.Y.S.2d 345 (Dist.Ct. Nassau Co. 1986) (succeeding informations which varied widely and changed prosecutor's theory of case held not "superseding", "supplemental" or properly amendatory).

The assault charge is the only charge in the case at bar which has been superseded pursuant to C.P.L. § 100.50.

The weapons charges, while not "superseding" counts, are compulsorily joinable with the original and superseding assault charge; separate, successive trials of the assault and weapons charges would violate double jeopardy protections, U.S Const.Amend. V; N.Y. State Const. Art. 1, § 6; C.P.L. Art. 40.

In other words, to prosecute defendant on all three charges in the instant case, the prosecutor had/has to proceed in a single trial. This factor is relevant in...