People v. Cooper

• Decision Date: 28 May 1996
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew COOPER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 532

643 N.Y.S.2d 532

219 A.D.2d 426

The PEOPLE of the State of New York, Respondent, v. Andrew COOPER, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 28, 1996.

Susan Axelrod, of counsel (Paul Harnisch on the brief; Robert M. Morgenthau, District Attorney of New York County, attorney), for Respondent.

Frances A. Gallagher, of counsel (Daniel L. Greenberg, attorney), for Defendant-Appellant.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, KUPFERMAN and WILLIAMS, JJ.

SULLIVAN, Justice Presiding.

This appeal presents the issue of whether, in determining the time in which the People must be ready for trial, the six-month period provided in CPL 30.30(1)(a) or the 90-day period provided in CPL 30.30(1)(b) applies where defendant, initially arraigned on a misdemeanor complaint, is later indicted for the same criminal acts as felonies, not misdemeanors. Since defendant, an 82-year-old man convicted of driving while intoxicated as a felony, also raises a due process claim with respect to the admission of expert testimony, a brief summary of the trial evidence is in order.

On July 24, 1992, at approximately 2:30 a.m., defendant, driving southbound on Broadway in upper Manhattan in his automobile with two passengers accompanying him, attempted to make a U-turn at 139th Street and, in so doing, struck a jeep driven by Dr. Sean McKinley Allen, which was proceeding northbound on Broadway through the intersection with the light in its favor. Defendant's vehicle rebounded onto the concrete island separating the northbound from southbound lanes and came to rest on the passenger's side. Both vehicles were severely damaged and the front seat passenger in defendant's car was knocked unconscious.

When questioned by the responding police officers, defendant responded in speech that was slurred, he had difficulty walking and was unsteady on his feet, he had blood-shot eyes and his breath smelled of alcohol. Concluding that defendant was drunk, the ranking officer at the scene directed one of the officers to arrest him for driving while intoxicated.

After being taken to the precinct, defendant admitted that he had been drinking beer earlier that evening. A breathalyzer test was administered at 4:20 a.m.; a .10 reading was registered. No physical coordination test was conducted. Defendant testified, accounting for his activities that evening. He denied drinking any alcoholic beverages. In fact, he testified, he had not had an alcoholic drink in two or three years.

This prosecution was commenced on July 25, 1992, when the People filed a misdemeanor complaint in the Criminal Court charging defendant with two counts of driving while intoxicated pursuant to Vehicle and Traffic Law §§ 1192(2) and 1192(3), which are unclassified misdemeanors. Since defendant's arrest record revealed an August 1, 1985 conviction for driving while intoxicated (Vehicle and Traffic Law § 1192[3], the People, at defendant's arraignment that same day, served notice, pursuant to CPL 170.20, of their intention to submit the charges to a grand jury. The court adjourned the matter to September 9, 1992 for grand jury action. Defendant was subsequently indicted on October 27, 1992, charged with two felony counts of driving while intoxicated (Vehicle and Traffic Law §§ 1192[2], 1192[3], 1193[1][c], and the case proceeded in the Supreme Court through motions to trial. The People answered ready for trial on March 19, 1993.

On April 19, 1993, defendant moved to dismiss the indictment on speedy trial grounds, arguing that, because he had originally been charged with misdemeanors, the People were required to be ready for trial within 90 days pursuant to CPL 30.30(1)(b), which, admittedly, they were not. The People argued that when a misdemeanor is converted into a felony, CPL 30.30(1)(a) is triggered and they must then be ready for trial within six months of the commencement of the action, less any excludable time. The trial court agreed with the People, holding that the underlying structure of the statute makes the six-month period applicable to felonies and the 90-day period to misdemeanors.

The starting point for analysis is the speedy trial statute itself, which, both parties agree, is silent as to the applicable time period for the People's readiness when the misdemeanor complaint commencing the proceeding is superseded by a felony indictment. Two distinct time periods are set forth in CPL 30.30(1). Dismissal is mandated if the People are not ready for trial within: "(a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony; (b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."

According to the general rules of construction, the statute must be " 'read and given effect as it is written by the Legislature' " and in accordance with the natural and obvious meaning of the statutory words. (Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539, 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241, quoting Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634, 639, 59 N.E.2d 630; McKinney's Cons.Laws of N.Y., Book 1, Statutes §§ 92, 94.) The rules of strict construction, however, cannot be applied without regard to the "general statutory scheme, the circumstances of the statute's enactment or the nature of the result dictated by strict adherence to a section's language." (People v. Davis, 195 A.D.2d 1, 4, 606 N.Y.S.2d 899, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 131, 635 N.E.2d 300.)

Nowhere does the statute state that the time in which the People must be ready is determined by the level of offense charged at the commencement of the action. Had the Legislature so intended it could easily have provided such language. While CPL 1.20(17) specifies clearly that the filing of the first accusatory instrument triggers the commencement of a criminal action for speedy trial purposes, it in no way suggests that the first accusatory instrument determines which time period applies. Thus, the phrase, "commencement of a criminal action" is used only as a starting point for the People's time to be ready. The determinative factor is not the initial charge but the level of crime with which the defendant is ultimately "accused" and for which he is prosecuted.

In the instant case, defendant was notified at his Criminal Court arraignment that the misdemeanor charges would be submitted to a grand jury for prosecution as felonies. Thus, he knew from the action's commencement that he would be "accused of * * * a felony"; he was originally charged with misdemeanors only because of the People's belated access to his prior conviction record of driving while intoxicated, which elevated the charges to felony status.

In arguing that the 90-day misdemeanor time period applies, defendant points to CPL 30.30(5)(c), which provides that where an action is commenced by the filing of a felony complaint which is subsequently replaced with or converted to an "information, prosecutor's information or misdemeanor complaint * * * or a prosecutor's information is filed * * * the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument." ¹ Defendant reasons that since the Legislature provided for a modification of the time to be ready based on a reduction of charges, the failure to enact a corresponding provision when the charges have been upgraded is an intentional one and the People's obligation to be ready for trial within 90 days of the commencement of the criminal action remains unchanged.

While the statute is silent with respect to the specific situation here, the provisions of CPL 30.30(5)(c) hardly support defendant's position. By this enactment, the Legislature, despite the level of the offense charged in the original accusatory instrument, has generally given the People an additional 90 days to be ready from the time of a reduction of a felony charge to a misdemeanor. Thus, the Legislature has rejected a rigid fixing of the People's time to be ready based on the level of the offense originally charged, which is what defendant advocates here. Instead, it opted for a more flexible time period based on the offense with which the defendant is ultimately, or at the time of reduction, "accused". (See, CPL 30.30[1][a].) The more flexible approach is certainly called for here, where the People had no control over the receipt of the information necessary to charge the felony. They acted at the first available opportunity to advise defendant of their intention to present his case to a grand jury. Thus, defendant knew from his initial arraignment that he faced felony charges.

Defendant relies heavily on People v. Tychanski, 78 N.Y.2d 909, 573 N.Y.S.2d 454, 577 N.E.2d 1046. There, the defendant, originally arraigned on a felony complaint which was superseded by a misdemeanor indictment, argued that, pursuant to CPL 30.30(5), the People were required to be ready within 90 days of the filing of the misdemeanor indictment because of the reduction of the charges. The Court of Appeals rejected the argument, holding that since CPL 30.30(5)(c) did not list misdemeanor indictments as one of the accusatory instruments that would trigger application of the shorter time period, the Legislature must have intended to exclude them. Thus, the six-month period applied.

While Tychanski is consistent with defendant's argument that, absent circumstances rendering CPL 30.30(5)(c) applicable, the pertinent readiness period is determined by the nature of the original accusatory instrument, it appears more likely that Tychanski was decided on its particular...