People v. Bell

• Decision Date: 12 July 1978
• Citation: 407 N.Y.S.2d 944,95 Misc.2d 360
• Parties: The PEOPLE of the State of New York v. James BELL, Defendant.
• Court: New York City Court

Page 944

407 N.Y.S.2d 944

95 Misc.2d 360

The PEOPLE of the State of New York v. James BELL, Defendant.

Criminal Court of the City of New York, Queens County, Part 1B.

July 12, 1978.

[95 Misc.2d 361] John J. Santucci, Dist. Atty., Queens County by Henry Ramirez, Asst. Dist. Atty., Kew Gardens, for the People.

William L. Finger, Kew Gardens, for defendant.

OPINION OF THE COURT

MAX H. GALFUNT, Judge:

This is a motion by the defendant for an order pursuant to CPL 160.50 sealing his arrest record and returning his fingerprints and photographs.

The defendant was arrested on September 22, 1977 and charged with rape in the first degree (Penal Law § 130.35), sodomy in the first degree (Penal Law § 130.50), and unlawful imprisonment in the second degree (Penal Law § 135.05).

After a hearing, the felony complaint was converted to an information charging sexual misconduct (Penal Law § 130.20), sexual abuse in the third degree (Penal Law § 130.55), and unlawful imprisonment in the second degree (Penal Law § 135.05).

On December 1, 1977, the court marked the action final against the People for December 21, 1977. Judge Lane dismissed the case on that date with the notation "People not ready."

The defendant now contends that this dismissal entitled him to the benefits available under CPL 160.50, i. e., the sealing of his arrest record and the return of his fingerprints and photographs.

It is well settled now that CPLR 160.50, subdivision 2 sets forth the exclusive circumstances under which the remedies of sealing the record and returning fingerprints and photographs will be made available to a defendant. The courts are not faced with the dilemma of interpreting the key phrase "in favor of such person" since the Legislature specifically set forth those instances which it considered necessitated the relief. (See People v. Casella, 90 Misc.2d 442, 395 N.Y.S.2d 909; People v. Blackman, 90 Misc.2d 977, 396 N.Y.S.2d 982.)

By enacting this very comprehensive list, the Legislature clearly indicated its meaning, so that, construction is unnecessary. In such a case it is the duty of the court to carry out the express legislative intent and not read a different intent into the law by the aid of the canons of construction (Statutes, McKinney's Consolidated Laws, § 91).

An individual would be entitled to the relief sought if the dismissal of the action against him constituted one of the instances set forth under CPL 160.50(2). This court must, therefore, attempt to define the prior court's action in order to determine whether or not it falls within the ambit of CPL 160.50(2).

In view of the fact that this case deals with the dismissal of an information, we must refer to those sections in CPL 160.50(2) which provide for the dismissal of informations.

Examination of the statute reveals § 160.50(2)(b) and specifically CPL § 170.30 are the relevant sections of subdivision 2.

CPL 170.30 provides for the statutory dismissal of an information upon the motion of a defendant based on the various grounds enunciated. Of the seven possible theories for dismissal contained within section 170.30, only two could possibly apply to the instant case.

Section 1(e) of 170.30 provides for dismissal of the action when the defendant has been denied the right to a speedy trial. However, this basis may be eliminated due to the fact that the court record contains no formal speedy trial motion initiated by the defendant as required. There is further reason for disregarding this theory since there is an absence of any time computation of the type which ordinarily accompanies the determination of such a motion pursuant to the time limitations set forth in CPL 30.30.

It may also readily be concluded that the court did not act "in the interests of justice" pursuant to CPL 170.40. Nowhere is there indicated that it was a matter of judicial discretion based upon some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of this defendant would constitute or result in injustice (CPL 170.40, subd. 1). Nor is there enunciated any of the statutorily required statements setting forth the reasons on the record upon which the court may have relied in reaching its decision (CPL 170.40, subd. 2; see People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106).

How can the actions of the court be classified? They must be deemed a "dismissal for failure to prosecute." This reflects the power of the court to control its calendar.

The power to control a calendar is a vital consideration in the administration of the courts (Headley v. Noto, 22 N.Y.2d 1, 290 N.Y.S.2d 726, 237 N.E.2d 871).

In Riglander v. Star Co., 98 App.Div. 101, 90 N.Y.S. 772 (1st Dept., 1904), aff'd 181 N.Y. 531, 73 N.E. 1131, the Court stated:

"One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business, and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs."

The inherent power of the Judiciary is a judicial power, but only in the sense that it is a natural necessary concomitant to judicial power:

"The inherent powers of a court are such as result from the very nature of its organization and are essential to its existence and protection and to the due administration of justice. It is fundamental that every court has inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction." 14 Am.Jur. Courts sec. 171 (1938).

This exercise by the court of calendar control is a fundamental common law right (Ballard v. Billings and Spencer Co., 36 A.D.2d 71, 319 N.Y.S.2d 191), and the court is entrusted with wide discretion in exercising calendar control (Wahrhaftig v. Space Design Group, 33 A.D.2d 953, 306 N.Y.S.2d 863).

The court is under the affirmative duty to see that litigation is disposed of with reasonable dispatch. Calendar congestion is of vital concern (In re Brooklyn Bar Association, 223 App.Div. 149, 227 N.Y.S. 666; Judiciary Law 2-b).

Some sister states have held that occasionally the inherent judicial power can override statutes and state constitutional provisions (People v. Western Union Telegraph Co., 70 Colo. 90, 198 P. 146).

It is essential to keep in mind that the primary function of a court is the orderly and expeditious processing of litigation. To this end, it has been repeatedly remarked that every court has the inherent power to do what is reasonably necessary for the administration of justice within the scope of its jurisdiction (Langan v. First Trust and Deposit Co., 270 App.Div. 700, 62 N.Y.S.2d 440).

Therefore, the "dismissal for failure to prosecute" may be deemed to fall under this power of the court.

Is the dismissal of the charges due to the failure of the People to prosecute within a reasonable or specific period of time actually a speedy trial determination with the final and binding effect of CPL 170.30, subd. 1(e) (parallelling CPL 210.20(1)(g))?

As stated in People v. Morgan, 90 Misc.2d 416, 418, 395 N.Y.S.2d 363, 365:

"While the underlying facts which may prompt a Judge . . . to dismiss for failure to prosecute may also constitute the basis for a speedy trial motion, the parameters are not co-extensive. A dismissal for failure to prosecute a criminal case has no statutory premise and is based upon the actual or implied abandonment of the proceedings by the District Attorney. A speedy trial motion alleges a violation of a defendant's constitutional right to a speedy trial. (CPL 30.20, 30.30.)"

With the advent of CPL 30.30 and its set time limitations, the dismissal for failure to prosecute is still invoked. When a court does act to dismiss the charges for failure to prosecute, it reflects an impatience by the court with the People's efforts (or lack of effort) to move promptly. But it is not a speedy trial motion, pursuant to CPL 30.30, which has procedural aspects as set forth in CPL §§ 170.45, 210.45.

Clearly, the two motions are distinguishable.

The law prior to the enactment of the CPL was the Code of Criminal Procedure. The title to Chapter VII, thereof, provided for dismissal of a criminal action, before or after indictment for want of prosecution or otherwise. This chapter was intended to remedy the defect in the then existing practice that when a defendant was held to answer or was indicted there was no mode of compelling the prosecution to proceed to trial or to be relieved from the indictment (McKinney's Book 66, p. 687, Note of Commission). These few archaic provisions weakly purported to prohibit undue delays at certain pretrial stages of an action by calling for dismissal of an indictment when certain events did not happen at the next term of the court (see the Practice Commentary by Richard G. Denzer, following CPL 30.30 in vol. 11A, McKinney's Consolidated Laws). These sections dealt only with prosecutions after indictment, not prosecution of misdemeanors.

Section 673 of the Code of Criminal Procedure stated:

"An order for the dismissal of the action, as provided in This chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor; but, except as provided in section six hundred sixty-nine-a (and) section six hundred sixty-nine-b hereof, it is not a bar, if the offense charged be a felony." (emphasis added)

Some case law suggested this section referred solely to dismissals for lack of prosecution. The statutes showed a specific intent on the part of the Legislature that a person should not be subjected to a second charge which is not of a serious criminal nature if the same charge has been previously dismissed for lack of prosecution (People v. Miller, 63 Misc.2d...