People v. Consolidated Edison Co.

• Decision Date: 11 July 1994
• Citation: 615 N.Y.S.2d 978,161 Misc.2d 907
• Parties: The PEOPLE of the State of New York v. CONSOLIDATED EDISON CO., Defendant.
• Court: New York City Court

Page 978

615 N.Y.S.2d 978

161 Misc.2d 907

The PEOPLE of the State of New York v. CONSOLIDATED EDISON CO., Defendant.

Criminal Court of the City of New York New York County, Part SAP 2.

July 11, 1994.

Paul A. Crotty, Corp. Counsel and Marilyne Mason, Asst. Corp. Counsel of the City of New York, New York City, for the People.

Peter A. Hagan and Richard W. Babinecz, New York City, for defendant.

LAURA VISITACION-LEWIS, Judge:

Defendant, Consolidated Edison Company of New York, moves to dismiss four matters docketed as 93N400084X, 93N400089X, 93N408972X and 94N397618X, on the ground that the failure of law enforcement agents to file accusatory instruments by the return date of the appearance ticket renders the court without jurisdiction. ¹ This issue has been the subject of prior challenges by the within corporate defendant, as well as other parties, and has resulted in conflicting decisional law among the trial courts. Indeed, Consolidated Edison of New York is the named defendant in two recent cases which reached opposing results. For the reasons set forth below, defendant's motions to dismiss are granted.

The facts are undisputed. In each case, appearance tickets charging violations of the New York City Administrative Code were issued by Department of Transportation inspectors, and made returnable to the Criminal Court, Summons Appearance Part. On the specified return dates, accusatory instruments had not yet been filed, and the matters were therefore undocketed. Counsel appearing on behalf of the corporate defendant was informed by Department of Transportation personnel that defendant would be notified of the new return date. ²

Thereafter, informations were filed, and the cases were docketed and placed on the court's calendar for the newly scheduled date. The instant motions to dismiss for lack of jurisdiction ensued.

In pertinent part, CPL 150.50(1) provides as follows:

A police officer or other public servant who has issued and served an appearance ticket must, at or before the time such appearance ticket is returnable, file or cause to be filed with the local criminal court in which it is returnable a local criminal court accusatory instrument charging the person named in such appearance ticket with the offense specified therein (emphasis added).

The plain meaning, as well as the clear import, of this statute--both undisputed by the People--is that the filing of an accusatory instrument by its return date is mandated under the law. That which is in issue, and what has divided the trial courts, is the significance of a failure to comply with this statutory requirement, and how it should be redressed.

Analysis has largely focused on the question of whether a court acquires personal and/or what has been referred to as "subject matter jurisdiction" ³ when a defendant comes to court in response to an appearance ticket, only to find that no accusatory instrument has been filed, and that his case does not appear on the calendar.

In People v. Con. Ed., 153 Misc.2d 595, 582 N.Y.S.2d 614 (Crim.Ct.N.Y.Co.1992) (hereinafter "Con. Ed. I"), the court found no jurisdictional impediment in the failure to file an accusatory instrument by the return date, ruling that this was solely a "defective" date of appearance, which affected neither subject matter nor personal jurisdiction. Citing People v. D'Alessio, 134 Misc.2d 1005, 513 N.Y.S.2d 906 (Crim.Ct.Richmond Co.1986), the court further held that defendant's due process rights were protected by assessing speedy trial time as of the date of defendant's initial appearance.

D'Alessio involved a desk appearance ticket issued to a defendant for driving while intoxicated and related crimes. Although an accusatory instrument was not filed on either the return date or the subsequent court date, no jurisdictional challenge was raised. Rather, defendant returned to court on the third date, at which time the accusatory instrument was filed, engaged in motion practice, and was granted a Huntley hearing. Following the People's second failure to be ready for that hearing, defendant moved to dismiss on speedy trial grounds.

In deciding defendant's motion, the court framed the issue as one of when a criminal action commences "for purposes of determining speedy trial", id. at 1006, 513 N.Y.S.2d 906, and computed the includable time from the date of defendant's first appearance, citing CPL 30.30(5)(b). In pertinent part, this subdivision states: "[f]or purposes of this section ... where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket" (emphasis added). Defendant's motion to dismiss was granted.

Declining to adopt the reasoning of Con. Ed. I, supra, and People v. D'Alessio, supra, the court in People v. Con. Ed., 159 Misc.2d 354, 357, 604 N.Y.S.2d 482 (Crim.Ct.Queens Co.1993) (hereinafter Con. Ed. II), rejected the "legal fiction" that CPL 30.30(5)(b) may be used to deem a case to have commenced with defendant's appearance when no accusatory instrument has been filed. The court held that the failure to timely file an accusatory instrument in accordance with the plain language of CPL 150.50(1) rendered the appearance ticket a "nullity" (at 356, 604 N.Y.S.2d 482) and therefore deprived it of subject matter jurisdiction. The appropriate remedy, the court concluded, was dismissal without prejudice to the People to re-serve an appearance ticket or to otherwise recommence the criminal proceeding.

Because I believe that the failure to file an accusatory instrument on or before the return date in accordance with CPL 150.50(1) is not merely a facial defect or a delay remediable by an adjournment charged to the People, I concur with Con. Ed. II, but would, for the reasons below, additionally require that any recommenced criminal proceedings contain notice of the prior dismissal.

New York's Criminal Procedure Law prescribes that "[a] criminal action is commenced by the filing of an accusatory instrument". CPL 1.20(17); 100.05; People v. Lomax, 50 N.Y.2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980); Preiser, Practice Commentaries (McKinney's Cons.Laws of N.Y., Book 11A, CPL 100.05, at 208-209.

Thus, it has repeatedly been held that the mere issuance of a desk appearance ticket does not constitute the commencement of a criminal proceeding. See e.g., Farkas v. State of New York, 96 Misc.2d 784, 787-88, 409 N.Y.S.2d 696 (Ct.Cl.1978). Rather, its issuance "must be followed by the filing of an appropriate accusatory instrument ... which then commences the criminal action" (emphasis in original). McClellan v. NYC Transit Authority, 111 Misc.2d 735, 736, 444 N.Y.S.2d 985 (Civ.Ct.Kings Co.1981); see, Preiser, Practice Commentaries (McKinney's Cons.Laws of N.Y., Book 11A, CPL 150.10, at 678). For this reason, an appearance ticket has long been deemed "merely an invitation to appear", People v. Rodriguez, 90 Misc.2d 356, 357, 394 N.Y.S.2d 542 (Village Ct. Nassau Co.1977), and held not to "constitute an accusatory instrument for purposes of trial or plea." People v. Jarmain, 93 Misc.2d 950, 951, 403 N.Y.S.2d 886 (Crim.Ct.N.Y.Co.1978).

Absent the filing of a proper accusatory instrument after the issuance of an appearance ticket, the court cannot acquire subject matter jurisdiction over a case. See, People v. LaRose, NYLJ, June 28, 1994, at 33 col. 5 (App.Term, 2d Dept.); Con. Ed. II, supra, 159 Misc.2d at 356, 604 N.Y.S.2d 482; People v. Coore, 149 Misc.2d 864, 865-66, 566 N.Y.S.2d 992 (Yonkers City Ct.1991); People v. Gross, supra, 148 Misc.2d at 241, 560 N.Y.S.2d 227; People v. Byfield, 131 Misc.2d 884, 885, 502 N.Y.S.2d 346 (Crim.Ct.N.Y.Co.1986); People v. MacFarlene, 130 Misc.2d 70, 71, 494 N.Y.S.2d 826 (Crim.Ct.N.Y.Co.1985); People v. Rodriguez, supra, 90 Misc.2d at 357-58, 394 N.Y.S.2d 542.

Nor can a defendant's appearance in court prior to the filing of the accusatory instrument confer in personam jurisdiction, for "[p]rior to the filing of [an accusatory] instrument the court has no jurisdiction to take any action with respect to the charge or the individual upon whom the ticket was served." Preiser, Practice Commentaries (McKinney's Cons.Laws of N.Y., Book 11A, CPL 150.50, at 692). As the Court of Appeals has held, a court "acquire[s] jurisdiction of defendant's person by the filing of an information and an appearance by defendant" (emphasis added). People v. Grant, 16 N.Y.2d 722, 723, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965), cert. denied 382 U.S. 975, 86 S.Ct. 541, 15 L.Ed.2d 466; People v. MacFarlene Co., supra.

Indeed, it would be violative of due process for a court to assume personal jurisdiction over a person against whom no case has been filed in court, for:

[a]n accusatory instrument gives the defendant notice of the offense charged and binds the prosecution to the allegations it must prove. It is a necessary correlate to the rights to due process, fair trial and confrontation. Thus, it would be constitutionally impermissible for a court to use its power in the absence of a properly filed, legally sufficient accusatory instrument. The failure to file a proper accusatory instrument has been held unwaivable; consequently, it is deemed a fatal 'jurisdictional defect' (citations omitted).

People v. Gross, supra, 148 Misc.2d at 241, 560 N.Y.S.2d 227.

The protections accorded defendants under CPL Article 30, which ensures an accused a speedy trial, can neither cure this jurisdictional defect, nor otherwise redress the problem. First, by its own terms, the CPL 30.30(5)(b) exception to the rule of commencement is limited to matters involving speedy trial relief and, as one court has noted, "[a]n action must commence before any speedy trial provisions become applicable." People v. Paige, 124 Misc.2d 118, 119 475 N.Y.S.2d 762 (Crim.Ct.Bronx Co.1984). Moreover, the history and purpose of this subdivision support this...