People v. Colon, AP-7

• Decision Date: 21 September 1981
• Docket Number: AP-7
• Citation: 110 Misc.2d 917,443 N.Y.S.2d 305
• Parties: The PEOPLE of the State of New York v. Miguel Angel COLON, Defendant
• Court: New York City Court

Page 305

443 N.Y.S.2d 305

110 Misc.2d 917

The PEOPLE of the State of New York v. Miguel Angel COLON, Defendant.

Criminal Court of the City of New York New York County, Part AP-7.

Sept. 21, 1981.

Robert M. Morgenthau, Dist. Atty., New York County (Mary R. O'Donoghue, New York City, of counsel), for the People.

Caesar Cirigliano, New York City (Christopher South, New York City, of counsel), for defendant.

JEFFREY ATLAS, Judge:

The defendant moves to dismiss two complaints, charging him with petit larceny, contending that the People were not ready for trial within 90 days of the commencement of each action (see: CPL § 30.30 The defendant also moves to dismiss a third complaint charging him with criminal trespass in the third degree contending that the People were not ready for trial in that case within 60 days of the commencement of the action. (See: CPL § 30.30 In each case the defendant claims that the People had not met the obligations of CPL § 30.30 because the People failed to convert each complaint to an information within the period of readiness prescribed by that section. (See: CPL § 30.30 Defendant argues that his motion must be granted notwithstanding the fact that, having been served with a desk appearance ticket ("DAT") in each case, he failed to appear at the time each "DAT" was returnable and remained "absent" (as that term is defined by CPL § 30.30until approximately one month prior to the making of these motions. This opinion is occasioned by the fact that a decision adverse to the People would affect thousands of pending cases commenced, as these were, by the filing of a complaint pursuant to the issuance of a Desk Appearance Ticket. ¹

On March 25, 1979, the defendant, using the name Miguel Angel Colon and an address at East 89th Street in Manhattan, received a Desk Appearance Ticket returnable in the Criminal Court on April 17, 1979. Pursuant to that appearance ticket, on April 17, 1979, under Docket Number N923089, a criminal action was commenced against the defendant by the filing of a complaint which charged the defendant with having committed petit larceny at Gimbels Department Store on March 25, 1979. The defendant failed to appear in court on April 17, 1979 and a warrant was issued for his arrest.

On May 27, 1979, the defendant, using the name Rafael Cordero and an address at East 106th Street in Manhattan, received a Desk Appearance Ticket returnable in the Criminal Court on June 12, 1979. Pursuant to that Appearance Ticket on June 12, 1979, under Docket Number N935191, a criminal action was commenced against the defendant by the filing of a complaint which charged the defendant with having committed petit larceny at Macy's Department Store on May 27, 1979. The defendant failed to appear in court on June 12, 1979, and a warrant was issued for his arrest.

Finally, on August 25, 1980, the defendant, using the name Miguel Colon and an address at Woodcrest Avenue in The Bronx, received a Desk Appearance Ticket returnable in the Criminal Court on September 23, 1980. Pursuant to this Appearance Ticket, on September 23, 1980, under Docket Number 0N048742, a criminal action was commenced against the defendant by the filing of a complaint which charged the defendant with having committed criminal trespass in the third degree, at Gimbels Department Store on August 25, 1980. The defendant failed to appear in court on September 23, 1980, and a warrant was issued for his arrest.

On December 22, 1980, all three warrants were executed and the defendant was returned to court and arraigned on the complaints.

As of January 15, 1981, when defendant first sought to make these motions, each of the complaints had not been converted to an information.

The parties are not in disagreement as to these facts and agree that no factual hearing is necessary.

It is assumed, for the purpose of this motion, that the defendant was "absent" or "unavailable" from court for a period beginning with the commencement of each of the actions and ending December 22, 1980. (See: CPL § 30.30 The defendant argues that the People were not ready for trial in each case in the time required by CPL section 30.30 and that the delay in the People's readiness was due, not as the People contend to the defendant's prolonged absence, but to the People's failure to convert each complaint to an information within that period. The defendant asserts that the principles of People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1976), which dealt with the application of CPL § 30.30 to a felony case, should be applied in these misdemeanor cases. I agree.

People v. Sturgis, supra, relies upon the rule that the People can only be ready for trial in a felony case after they have brought about the filing of an accusatory instrument sufficient to confer jurisdiction upon the court to try the defendant.

The rule is no different in misdemeanor cases. The Criminal Court clearly has no jurisdiction to take to trial a defendant who is charged only by a complaint and who has not waived the filing of a sufficient information. (See: CPL §§ 1.201.20100.10170.10and 170.65² Without his having provided the court with a basis for exercising such jurisdiction the District Attorney cannot be ready for trial in a misdemeanor case. (See: People v. Duncan, New York City Criminal Court, No. 1N019074, Gartenstein, J., August 1981; People v. Lee, New York City Criminal Court, No. 0N063517, Egitto, J., April 1981; People v. Phillips, NYLJ, May 6, 1981, p. 11, col. 4 People v. Ryff, 100 Misc.2d 505, 509, 419 N.Y.S.2d 845 and, for that matter,People v. Callender, 101 Misc.2d 958, 962, 422 N.Y.S.2d 611 [Crim.Ct., N.Y.County, 1979].)

Responsibility to confer upon the Criminal Court jurisdiction to try misdemeanor cases rests squarely upon the shoulders of the District Attorney. Like any other prosecuting litigant in an action of any nature (civil as well as criminal) he must file an accusatory instrument sufficient in its allegations to give the court reason to exercise its jurisdiction.

The existence of CPL § 30.30 need not make complex the application of this fundamental and simple concept of litigation. CPL § 30.30 simply requires that the People be ready for trial within 90 days of the commencement of a criminal action charging a Class "A" misdemeanor and within 60 days of commencement of a Class "B" misdemeanor action. It is clear in felony matters where readiness must occur within six months of commencement of the criminal action, that, if an accusatory instrument sufficient to confer jurisdiction is not filed within that period, the People are not ready for trial within the period required by § 30.30. (See: People v. Sturgis, supra ). Applying that principle to misdemeanor cases, it is obvious that the People cannot be ready for trial within 90 days or 60 days of commencement of the actions if they have not converted the complaints to jurisdictionally sufficient informations within those periods. (See: People v. Duncan, supra; People v. Lee, supra; People v. Phillips, supra; People v. Smith, 103 Misc.2d 640, 426 N.Y.S.2d 952 and People v. Ryff, supra.) ³

In the case before me the People did not file an information within 60 days of commencement of the trespass action nor did they file informations within 90 days of commencement of the larceny actions and the matters must be dismissed unless the People were excused from those deadlines by CPL § 30.30.

The People argue that to hold that further prosecution of these actions as barred by CPL § 30.30 is to give a substantial benefit to a defendant who, using different names and addresses on three separate occasions, received ample notice of the commencement of these cases, but simply absented himself from court. However, CPL § 30.30specifically excuses the People from the obligation it creates only if the defendant's absence is the cause of the delay in the People's answering ready. (See: People v. Osgood, 52 N.Y.2d 37, 41, 436 N.Y.S.2d 213, 417 N.E.2d 507 People v. Sturgis, supra). The defendant's absence in these cases did not...