People v. Arturo

• Decision Date: 06 February 1984
• Parties: The PEOPLE of the State of New York v. Bonnilla ARTURO, Defendant.
• Court: New York City Court

Page 998

472 N.Y.S.2d 998

122 Misc.2d 1058

The PEOPLE of the State of New York v. Bonnilla ARTURO, Defendant.

Criminal Court of the City of New York,

New York County, Part AP17.

Feb. 6, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Paul Fiscella, New York City, of counsel), for the People.

Ezra, Ezra & Anderson, New York City (Joel S. Ezra, New York City, of counsel), for defendant.

ALBERT D. KOCH, Judge:

The defendant moves to dismiss the charges against him of petit larceny (Penal Law § 155.25) on the grounds that the People were not ready for trial within 90 days of the commencement of the action as required by CPL 30.30(1)(b). Defendant argues that all periods of time from commencement of an action by a misdemeanor complaint until its conversion to a misdemeanor information by the filing of a corroborative affidavit must, as a matter of law, be chargeable to the People.

The People claim that if conversion is completed within 90 days of commencement, the court should make an independent investigation to determine whether any delay prior to conversion is excludable under CPL 30.30. Crucial to this position is the necessity that the strict 90-day period for conversion mandated by People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305, affd. 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548, be held irrelevant to the excludable time provisions of CPL 30.30.

The facts of the case are not in dispute. On July 29, 1983 Bonnilla Arturo was arrested and charged with stealing $60.00 worth of gold shavings from the jewelry store where he worked. He was arraigned on a misdemeanor complaint on July 30 1983 and several subsequent adjournments of the case were taken. ¹

The corroborating affidavit was filed on October 28, 1983, the ninetieth day following the filing of the accusatory instrument which commenced the action (see CPL 100.05). Three days later, on November 1, 1983, the People were not ready for trial and requested an adjournment for trial to November 15, 1983. On that day the defendant moved to dismiss the information based upon the People's non-readiness for trial.

The relevant provisions of the controlling statute, CPL 30.30, are as follows:

1. Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision one of section 210.20 must be granted where the people are not ready for trial within:

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(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;

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4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:

(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or

(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel. The court must grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent; or

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(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; ...

The legislative intent in passing CPL 30.30 was to promote speedy trials; it imposes upon the People a strict standard of diligence with respect to all matters fundamental to the prosecution of a criminal case. (People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507.) The strict limits of the ready trial statute are not absolute; a prosecutor can be relieved from the strict time limitations when a delay in prosecution has been caused by the defendant or is due to exceptional circumstances beyond the prosecutor's control. (CPL 30.30 [subd. 3, 4]; see, also, People v. Thompson, 111 Misc.2d 521, 444 N.Y.S.2d 378, affd. 120 Misc.2d 444, 467 N.Y.S.2d 348; People v. Osgood, supra.) In this case no exceptional circumstances beyond the prosecutor's control are alleged to have occurred.

The Court of Appeals has held that the People cannot be "ready for trial" without a timely conversion of the complaint into a jurisdictionally sufficient information. The failure to convert severely limits the availability of the excludable time provisions of CPL 30.30 (subd. 4). (People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548, supra; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331.)

There is a major and often critical difference between cases where the sole accusatory instrument is a misdemeanor complaint and cases where an information commences the action or is the result of a timely conversion of a misdemeanor complaint. An action against a defendant can be commenced by either a misdemeanor complaint or by a misdemeanor information; but an action may only be "prosecuted" when a misdemeanor information is filed. (CPL 100.10[1], 100.10[4].)

A misdemeanor complaint confers only limited jurisdiction upon a court. It allows for the arraignment and the temporary control of the defendant's person based upon "reasonable cause" to believe the defendant has committed a crime (People v. Pinto, 88 Misc.2d 203, 387 N.Y.S.2d 361). It commences the action but, in the absence of a waiver, is not a sufficient instrument for prosecution of the action. (CPL 100.10[4], 170.65.) The defendant does not even have to plead to a misdemeanor complaint (CPL 170.65[1] ); in silence and in safety he may wait until an information is filed.

The right of a defendant to be prosecuted by an information is a substantial one and is based upon a "fundamental difference between these accusatory instruments--i.e. that a misdemeanor complaint may rest on hearsay allegations while an information may not." (People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434.) In the absence of a waiver, the absolute right of defendant to be prosecuted by information carries with it an absolute corresponding duty to the prosecutor to file a misdemeanor information or convert the misdemeanor complaint in a timely manner. The court may not try a misdemeanor case, nor may the District Attorney prosecute that case, until an accusatory instrument sufficient in its allegations is filed with the court. The responsibility to file such an instrument "rests squarely on the shoulders of the prosecutor" and must be done within the statutory time limits of CPL 30.30(1)(b) (People v. Colon, supra; People v. Thompson, supra ).

Here, the People satisfied the minimum requirements of Colon by filing the corroborating affidavit on the ninetieth day after commencement of the action. However, they did not declare their readiness for trial until one hundred and eight days after the action commenced.

Until the People filed on the ninetieth day, they were not ready for trial as a matter of law. When they filed, one impediment was removed, but while failing to file a misdemeanor complaint is synonymous with nonreadiness, filing is not synonymous with readiness.

The People point to their compliance with Colon (supra ) and urge the court to find that the defendant caused a delay in the People's readiness for trial by making a discovery motion and a request for adjournment prior to the conversion of the misdemeanor complaint. ²

Their argument is not acceptable. CPL 30.30 contains no language which allows such an approach. I see no reason why there should be one standard for determining excludability if the prosecutor files a corroborating affidavit on the ninetieth day after commencement of the action and another standard if he files one day later. The filing of a corroborating affidavit is not a declaration of readiness for trial; it is a jurisdictional requirement which allows the People to prosecute the case. Until the District Attorney has the requisite authority to prosecute, the delay in acquiring that authority rests with his office; the defendant cannot be held responsible for purely gratuitous activities.

Under these circumstances the defendant's demand for discovery prior to conversion cannot be made the basis upon which the People may claim delay. Under CPL 240.20 a defendant's right of discovery is available only when there is pending a superior court information, prosecutor's information, information or simplified information. There is no provision to permit discovery upon a felony complaint or misdemeanor complaint. Indeed, a defendant's motion for discovery prior to conversion is, in effect, a nullity. (See People v. Webb, 105 Misc.2d 660, 432 N.Y.S.2d 826; see also J. Fitzgerald's reasoning in People v. Zisis, 113 Misc.2d 998, 1004, 450 N.Y.S.2d 655.)

I am aware that current practice in this court is to permit a defendant to move for discovery prior to conversion but I find this practice neither controlling nor prudent. To the contrary, there are significant reasons, in the interest of judicial economy, to follow the legislative lead in requiring an information prior to discovery.

Discovery is often a critical preliminary step utilized by a defendant in the preparation of his case. Yet, to have discovery prior to conversion promotes needless renewal motions should the gravamen of the complaint be changed upon...