People v. Cummings

• Decision Date: 26 April 1994
• Citation: 611 N.Y.S.2d 1011,159 Misc.2d 1118
• Parties: The PEOPLE of the State of New York, Plaintiff, v. David CUMMINGS, Michael Anthony Curcio, Mark Hartle, Mariano Guiseppe Pistolesi and Gregory Lyle Streeter, Defendants. . Lawrence County
• Court: New York Supreme Court

Page 1011

611 N.Y.S.2d 1011

159 Misc.2d 1118

The PEOPLE of the State of New York, Plaintiff, v. David CUMMINGS, Michael Anthony Curcio, Mark Hartle, Mariano Guiseppe Pistolesi and Gregory Lyle Streeter, Defendants.

Supreme Court, St. Lawrence County.

April 26, 1994.

G. Oliver Koppell, Atty. Gen. (Asst. Attys. Gen. Edward D. Saslaw, Shelly Mayer, Nancy Snyder, and Christine Duisin, of counsel), for the People of the State of N.Y.

Charles A. Gardner, Gouverneur, for David Cummings.

No appearance for Michael Anthony Curcio.

Gary W. Miles, Watertown, for Mark Hartle.

Mary J. Fahey, Syracuse, for Mariano Guiseppe Pistolesi.

Michael J. Vavonese, Syracuse, for Gregory Lyle Streeter.

EUGENE L. NICANDRI, Justice.

FACTUAL BACKGROUND

The Attorney General of this state has been appointed by the Governor, pursuant to Executive Law § 63, to supersede the St. Lawrence County District Attorney in the investigation and prosecution of individuals involved in what has been reported as a "gang rape" at a restaurant in Gouverneur in October, 1991.

The five named defendants were indicted for Rape, First Degree. Upon motion of the defendants the County Court reviewed the grand jury minutes, and found the evidence sufficient to sustain the indictment. The motion to dismiss or reduce was denied.

Four of the defendants made confessions to the police. After a combined suppression hearing the court suppressed the statement by defendant Pistolesi, and ordered separate trials for the defendants. A trial date of June 7, 1993 was set for the first of the defendants, David Cummings.

While this indictment was pending, and without informing County Court, the District Attorney wrote to counsel for the defendants, proposing a plea bargain under terms that the People would file an information in Town Court, charging each with Sexual Misconduct, a misdemeanor, and further promising that the People would make no sentencing recommendation to the local court. Upon acceptance of this plea within a stated time limit, by all five defendants, and after imposition of sentence, the district attorney promised to have the pending indictment dismissed. ¹

All five defendants accepted the offer, and in a single day, in extraordinary session on a Saturday, the People filed the misdemeanor charges, the defendants were arraigned with counsel, entered guilty pleas, and were sentenced to a $750 fine each, with one defendant also being ordered to perform 200 hours of community service.

Thereafter the district attorney appeared in County Court on June 9, 1993, while there on another matter, and on the record, without the presence of the defendants or their attorneys, moved to dismiss the indictment based upon the pleas in Town Court, and made the following statement:

"May it please the Court, in the matter of the People against Cummings, Curcio, Hartle, Pistolesi and Streeter, the People respectfully move the Court to dismiss the indictments. These defendants have recently pled to separately filed Informations charging them with sexual misconduct. The reason I'm moving to dismiss the indictments is the evidence before the grand jury, any evidence that we could garner to take these matters to trial would be insufficient, in my estimation, even to get to the injury on the basis of not being able to prove a corpus delicti. Granted we have a confession or statement from three of them, but under 60.50 of the Criminal Procedure Law, they cannot be convicted solely upon those statements. If they were called to testify individually in seven (sic ; probably should read "separate" or "several") trials, they would be entitled to take their 5th Amendment right, and the only thing that could be done is they could be confronted with their previous statement, and under, I believe it's 60.35 of the Criminal Procedure Law, that cannot be used as direct evidence, but only to discredit your own witness, and each one would be considered accomplices, and under another section of 60 point, I can't remember that section, but they cannot been (sic ) convicted solely upon accomplice testimony. We have no independent evidence that a crime was committed. We have a complaining witness who cannot even testify that she was at the scene of the crime, any remembrance whatever of any incident that happened. There is no forensic evidence, no clothing, no possibility of doing any DNA testing, because there was (sic ) no specimens, no rape kit done. I feel that justice has been done by the pleas in local court, and we respectfully move to dismiss the indictment pending against these five defendants."

The Court then and there dismissed the indictment on application of the People. The Court made no findings and stated no other reasons.

Following substantial national, regional and local coverage of the case by the news media, and apparently on complaint of the victim to the Governor, the Temporary Commission of Investigation of the State of New York (the "SIC") voted in July 1993 to investigate the circumstances surrounding the incident and the prosecution of the defendants. Following their investigation, including a review of the grand jury minutes and the relevant decisional law, the SIC recommended that the Governor appoint a Special Prosecutor. This the Governor did, by Executive Order # 180 (9 NYCRR 4.180) on February 17, 1994.

THE PRESENT MOTION

The Attorney General, in his capacity as Special Prosecutor, has moved in Supreme Court, St. Lawrence County, to vacate the County Court order dismissing the indictment and to reinstate the indictment against the defendants. St. Lawrence County Court Judge Eugene L. Nicandri was assigned as Acting Justice of the Supreme Court to hear the motion and to preside over any further proceedings. All named defendants were served with the motion. All have appeared by counsel except for Michael Curcio, who has not appeared before this Court or answered the motion. The represented defendants have filed a joint brief in support of their separate answering papers.

Attorney General's Position. The Attorney General's position is that the Court has authority to vacate County Court's dismissal order, and to reinstate the indictment, and that it should do so because the Court was misled by the district attorney's representations about the available evidence and the pleas in local court, on authority of Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378 (1985). It is argued that the pleas were illegal, in contravention of the plea limitations contained in C.P.L. 220.10(5)(d)(ii), which would have required a plea to at least a Class D violent felony offense in satisfaction of the Class B violent felony offense (rape, first degree) with which the defendants were charged.

The Attorney General argues further that the local court pleas were nullities since the local court had no jurisdiction to entertain the misdemeanor prosecution under the facts and circumstances of this case. As a result of being nullities, and on authority of C.P.L. 40.30(2)(a), the pleas would produce no double jeopardy bar to further prosecution on the indictment. The line of cases cited by the Attorney General in support of this view is premised chiefly on the theory that local court is divested of jurisdiction once the indictment has been returned by the grand jury. Cf, People v. Anderson, 140 A.D.2d 528, 528 N.Y.S.2d 614 (2nd Dept.1988); People v. Phillips, 66 A.D.2d 696, 411 N.Y.S.2d 259 (1st Dept.1978), aff'd 48 N.Y.2d 1011, 425 N.Y.S.2d 558, 401 N.E.2d 916 (1980). See also, Moss v. Vaughn, 164 A.D.2d 958, 560 N.Y.S.2d 151 (2d Dept.1990) and People ex rel. Leventhal v. Warden, 102 A.D.2d 317, 477 N.Y.S.2d 332 (1st Dept.1984).

As amplified in his memorandum of law, the Attorney General's position on local court being divested of jurisdiction does not just relate to cases in which the local court exercises preliminary jurisdiction and thereafter a grand jury returns an indictment. Rather, it is his position that divestiture occurs whenever a grand jury indicts, whether by direct presentment of the case or by preliminary order of a local court, and that no local court may entertain charges subsumed under the indictment once the indictment has been returned and is pending in superior court. The rationale for this view is that to hold otherwise would allow indirect circumvention of the restrictions on plea bargaining, contained in C.P.L. 220.10.

With respect to the legal sufficiency of the evidence available to the People at the time of their motion to dismiss, and after the court had upheld the sufficiency of the grand jury evidence, the Attorney General states (1) that the District Attorney either misunderstood or mischaracterized the law concerning corroboration of confessions, and (2) that there is sufficient evidence available to the People to survive a motion to dismiss, at the end of the People's case at trial. At oral argument the Attorney General asserted the availability of further evidence, and offered to identify this to the Court in Chambers outside the hearing of the public. The Court declined to conduct any proceedings in Chambers.

Moreover, the Attorney General argues, the broad scope of a district attorney's discretion to determine whether or not to prosecute a particular case is not the same question as whether or not, and under what circumstances he may choose to discontinue a pending prosecution. The old common law prerogative of nolle prosequi (literally meaning "I do not wish to prosecute") was statutorily abolished in 1881 in New York. Dismissals are now regulated by the provisions of C.P.L. 210.20, including those relating to the interests of justice. See, C.P.L. 210.40 and People v. Douglass, 60 N.Y.2d 194, 469 N.Y.S.2d 56, 456 N.E.2d 1179 (1983).

Finally with respect to the Attorney General's position, he argues reinstatement of the indictment would not be an exercise in futility in view of possible statutory or constitutional...