People v. Consolidated Edison Co.

• Decision Date: 28 October 1993
• Docket Number: AP-3
• Citation: 159 Misc.2d 354,604 N.Y.S.2d 482
• Parties: The PEOPLE of the State of New York v. CONSOLIDATED EDISON CO., Defendant
• Court: New York City Court

Page 482

604 N.Y.S.2d 482

159 Misc.2d 354

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

Criminal Court of the City of New York,

Queens County, Part AP-3.

Oct. 28, 1993.

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

O. Peter Sherwood, Corp. Counsel of New York City by Jennifer Green, for prosecution.

BERNARD S. GREENBAUM, Judge:

The defendant is charged with violating section 19-105 of the New York City Administrative Code.

The defendant moved to dismiss the information as jurisdictionally defective on the ground that the People failed to conform with the requirements of CPL 150.50.

The People contend that their failure to comply with CPL 150.50 does not render the information defective.

After due deliberation, the court finds as follows:

The facts are not in dispute. Defendant Con Edison Company of New York, Inc., a corporation, was issued an appearance ticket by the New York City Department of Transportation for the above violation on May 5, 1993. The ticket was returnable in Criminal Court on July 14, 1993. An accusatory instrument was not filed with this court on or prior to the return date, July 14, 1993. The defendant appeared by its attorney on July 14, 1993 and discovered that the instant matter was not on the calendar. On August 4, 1993 the instant information was filed. The defendant's attorney happened to be in court on that date on an unrelated matter and appeared on behalf of the defendant. On August 4, 1993 the defendant moved to dismiss the information for failure to comply with CPL 150.50. The defendant contends that since the information was not filed with this court prior to or on the return date on the appearance ticket, this court never obtained subject matter jurisdiction over the case. Defendant further argues that failure to comply with the statutory requirement requires that the instant information be dismissed notwithstanding the fact that the People filed an accusatory instrument on August 4, 1993. The People contend that the court obtained valid subject matter and in personam jurisdiction over the defendant on August 4, 1993, and that failure to comply with CPL 150.50 does not necessitate dismissal.

CPL 150.50 provides:

1. 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. Nothing herein contained shall authorize the use of a simplified information when not authorized by law.

2. If such accusatory instrument is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument.

The plain language of this statute (CPL 150.50) mandates the filing of an accusatory instrument with the court on or before the return date of the appearance ticket. The statute states that an accusatory instrument "must" be filed with court "at or before" the return date of an appearance ticket which has been issued. The words of this statute are clear. The purpose of this statute is to place a filing requirement upon the person or agency issuing appearance tickets thereby protecting the citizens' due process rights.

In interpreting the meaning of a statute, every word of a statute must be given effect. "In construing a statute, no part thereof is to be considered meaningless unless that conclusion is inevitable." McKinney's Statutes Law § 231. The literal language of a statute should be enforced and statutes strictly construed except where the plain intent and purpose of the statute would otherwise be defeated. McKinney's Statutes Law § 111. Further, where appearance tickets are issued, CPL 150.50 is the mechanism by which the court obtains subject matter jurisdiction over the offense. Prior to the filing of the accusatory instrument the court has no jurisdiction to take any action with respect to the charge or the individual (see, Preiser, Practice Commentaries, McKinney's Consolidated Laws of N.Y., Book 11A, CPL 150.50 at 692). Where an appearance ticket is issued, the court obtains subject matter jurisdiction over the matter by the filing of an accusatory instrument with the court. People v. Grant, 16 N.Y.2d 722, 262 N.Y.S.2d 106, 209 N.E.2d 723 (1965). Prior to the time an accusatory instrument is filed, there is no action pending before the court. When an accusatory instrument is not filed within the time specified by statute, the appearance ticket becomes a nullity. The case is not commenced and there is a jurisdictional defect. The remedy for the People's failure to file an accusatory instrument should be that they must re-serve an appearance ticket upon the defendant or initiate the action in another manner. To hold any other way is to put the interests of enforcement agencies above the due process interests of defendants.

This court is aware of the cases relied upon by the People to support their position. However, this court disagrees with the holdings of both People v....