People v. Brooks

• Decision Date: 25 October 2001
• Citation: 190 Misc.2d 247,736 N.Y.S.2d 823
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>DEBRA EASLEY BROOKS, Respondent.
• Court: New York Supreme Court

190 Misc.2d 247
736 N.Y.S.2d 823

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,
v.
DEBRA EASLEY BROOKS, Respondent.

October 25, 2001.

Robert T. Johnson, District Attorney of Bronx County (Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for appellant.

Edward M. Kratt, New York City, for respondent.

McCOOE, J. P., and DAVIS, J., concur; SUAREZ, J., concurs in a separate memorandum.

[190 Misc.2d 248]

OPINION OF THE COURT

Per Curiam.

Order entered May 25, 1999 (Edgar G. Walker, J.) reversed, on the law, motion denied, information reinstated and the matter remanded for further proceedings.

The chronology of events relevant to defendant's CPL 30.30 motion is summarized as follows. On November 15, 1998 defendant was charged with several misdemeanors and lesser offenses, including criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), assault in the third degree (Penal Law § 120.00 [1]), and criminal impersonation in the second degree (Penal Law § 190.25 [3]), upon allegations that she struck the complainant with a metal "club" and then falsely represented herself to be a police officer. At defendant's arraignment on November 16, 1998, the People filed a supporting deposition and stated their readiness, to the apparent satisfaction of both defense counsel and the court. The matter was adjourned to December 17, 1998, with defense counsel participating in and proposing the choice of date. On the December 17 adjourn date, after the People again announced their readiness, defense counsel argued, for the first time, that the accusatory instrument contained hearsay and required a further "corroborating affidavit" with respect to the criminal impersonation charge, since "no grounds [were provided] for the assertion * * * that the defendant is not employed by the New York City Police Department as a * * * police officer." In response, the prosecution maintained that the accusatory instrument constituted a valid information with respect to the criminal impersonation charge because the arresting police officer had "firsthand knowledge" that the defendant "was not a fellow police officer." The Calendar Judge agreed with defendant's argument and, upon ascertaining that the People would need "one week," adjourned the case to February 3, 1999 to allow the People to file a "superceding information" on the criminal impersonation charge. The matter was adjourned from February 3, 1999 to February 26, 1999, after the People requested an additional "one week" period to file the superceding information previously required by the court. The People moved to dismiss the criminal impersonation charge on the February 26 adjourn date, and defendant's speedy trial motion ensued. Criminal Court granted the motion upon its determination that the entire 102-day period between arraignment and dismissal of the criminal impersonation charge was chargeable to the People, a determination apparently premised on the court's

[190 Misc.2d 249]

holding that the November 16, 1998 record readiness statement by the People was a "nullity" because there was then no "valid accusatory instrument." On the People's appeal, we reverse and deny defendant's speedy trial motion.

We note as a threshold matter that defendant's hearsay challenge to the criminal impersonation count of the information should have been raised by way of a formal motion to dismiss that count (see, CPL 170.35; People v Casey, 95 NY2d 354, 361), a procedure which, of course, would have triggered the motion practice exclusion of CPL 30.30 (4) (a). Even accepting the defendant's informally advanced claim that the criminal impersonation charge was insufficiently pleaded (compare, Matter of Rodney J., 83 NY2d 503, 507-508, with Matter of Edward B., 80 NY2d 458, 462-464; see, People v Casey, supra, 95 NY2d, at 361-362), we reject defendant's CPL 30.30 argument as contrary to settled speedy trial principles. First, neither the terms of CPL 30.30 nor its interpretative case law imposes any requirement upon the prosecution to obtain an accusatory instrument sufficient for trial before claiming the exclusion of delays occasioned by adjournments requested or consented to by the defendant (see, CPL 30.30 [4] [a], [b]; People v Worley, 66 NY2d 523, 525). The record demonstrates that the 31-day adjournment period from November 16, 1998...