People v. Callender

• Citation: 422 N.Y.S.2d 611,101 Misc.2d 958
• Parties: The PEOPLE of the State of New York, v. Roger CALLENDER, Defendant.
• Decision Date: 07 December 1979
• Court: New York City Court

Page 611

422 N.Y.S.2d 611

101 Misc.2d 958

The PEOPLE of the State of New York, v. Roger CALLENDER, Defendant.

Criminal Court of the City of New York, New York County.

Dec. 7, 1979.

Robert M. Morgenthau, Dist. Atty. of New York County, for People; Neil V. Getnick, Asst. Dist. Atty., of counsel.

Barry Gene Rhodes, Brooklyn, for defendant.

HERBERT I. ALTMAN, Judge:

The defendant has moved to dismiss the complaint on the ground he has been denied his right to a speedy trial pursuant to the provisions of CPL 30.30. His motion is two pronged. He asserts both that all periods of delay from the arraignment to the date of the making of the instant motion are chargeable to the People because of their failure to convert the complaint to an information and that, if such argument is found meritless, the periods of delay attributable to the People have exceeded those permitted by statute. The question whether all of the time which runs from arraignment to the "conversion" of a misdemeanor complaint to a misdemeanor information is chargeable to the People is a serious one with potential dramatic effect upon the workings of local criminal courts.

The defendant was arraigned on a felony complaint in the Criminal Court on February 23, 1979. On June 29, 1979 the felony complaint was converted to a misdemeanor complaint on the motion of the People, presumably in accordance with the dictates of CPL 180.50 (subd. 3, par. (a), cl. (iii)). On November 8, 1979, when the People answered that they were ready for trial, the instant motion was made.

IS ALL TIME PRIOR TO CONVERSION CHARGEABLE TO THE PEOPLE AS

A MATTER OF LAW?

In People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 the issue to be decided was whether a period of slightly more than three months, during which defendant was absent from court, was properly an excludable period within the meaning of CPL 30.30. A felony complaint had been lodged against the defendant on April 2, 1973 in the City Court of Rochester. The defendant was voluntarily absent from August 18 to November 26, 1973. He was indicted on November 2, 1973 and the case was moved to the Trial Calendar on January 23, 1974.

The Court of Appeals noted that CPL 30.30 (subd. 4, par. (c)) excludes periods of delay resulting from a defendant's absence or unavailability. However, it stressed that, in order to be excludable, more is required than mere absence or unavailability; delay must result therefrom or the period of absence will nevertheless be charged to the People. The court held that the failure to indict was in no way attributable to the defendant's absence or unavailability and charged all time from the arraignment until the case was moved to the Trial Calendar to the People, save for a total of 13 days representing an adjournment at the defendant's request and a period of time "during which a judge . . . retained all papers pertaining to the action." ¹ The Sturgis case therefore stands for the proposition that, in order for time to be excludable as resulting from the defendant's conduct, such conduct must have contributed to the failure of the People to answer that they were ready for trial (see People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345).

The defendant's position that all time which elapsed from the commencement of the prosecution until the conversion from a misdemeanor complaint to a misdemeanor information is chargeable to the People finds support in People v. Ryff, N.Y.City Cr.Ct., 419 N.Y.S.2d 845.

In Ryff, the defendant was arraigned on a felony complaint in July, 1978. At the conclusion of a preliminary hearing in September, 1978, the accusatory instrument was converted to a misdemeanor complaint and the People were directed to file a prosecutor's information. That direction was ignored until May, 1979. On the hearing of defendant's motion to dismiss pursuant to CPL 30.30 the People asked to have those delays in the proceeding occasioned by the defense excluded from the time within which the People had to be ready for trial. That request was denied on the ground that such delays had not affected the ability of the People to convert the complaint to an information. The Court held:

"In People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 * * * the Court of Appeals held time during which the District Attorney failed to secure an indictment strictly chargeable to the People despite the presence of pending bench warrants on the defendant. The Court reasoned that the fugitive status of the defendant did not preclude an indictment. The defendant, after all, had no desire to testify before the Grand Jury. This case is analogous. An information is merely the misdemeanor equivalent of an indictment. The status of the defendant did not preclude a proper filing, which involves only a ministerial act by the office of the D.A., and therefore there are no time periods to subtract in the calculation of the 6 months time frame. July 13, 1978 is the date of the initial accusatory instrument. The motion to dismiss is dated April 24, 1979. A 9-month period has elapsed." (People v. Ryff, 419 N.Y.S.2d 845, 848, Supra.)

I am constrained to disagree with the holding in Ryff. It appears that the reliance in that case upon the Sturgis holding was misplaced for several reasons. At the outset, I note that Sturgis itself specifically excluded from the CPL 30.30 computation the time attributable to defense motions even though it did not appear that such motions precluded the People from presenting the case to the Grand Jury. More important, however, is the distinction which must be made between the nature of an indictment and a misdemeanor information.

An indictment filed by a Grand Jury is the only method of prosecuting an offense in a superior court, save for a prosecution based upon a prosecutor's information following a defendant's waiver of indictment (CPL 210.05; CPL, Art. 195). Therefore, without a waiver by a defendant, the Supreme Court does not acquire jurisdiction over a felony case until there has been a Grand Jury indictment.

An action may be commenced in a local criminal court by means of an information or a complaint (CPL 100.10). In order for a misdemeanor information or misdemeanor complaint to be sufficient on its face, the allegations of the factual portion thereof must provide reasonable cause to believe that the defendant committed the offense charged. However, with regard to informations, such allegations must be in non-hearsay form (CPL 100.40). A misdemeanor complaint is deemed to have been converted to a misdemeanor information when supplemented by supporting depositions which satisfy the "non-hearsay" requirements of a misdemeanor information (CPL 170.65). A person arraigned upon a misdemeanor complaint has the right to be prosecuted upon a misdemeanor or information unless that right is waived (CPL 170.65, 100.10, subd. 4; People v. Weinberg, 34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434).

In Sturgis a felony complaint was pending in a local criminal court. Until an indictment was returned and the case placed on the calendar in the appropriate superior criminal court, the People could not have answered that they were ready for trial. The defendant's absence did not in any...