People v. Cummings

• Decision Date: 05 June 1972
• Parties: PEOPLE of the State of New York v. Robert CUMMINGS, Jr., Defendant.
• Court: New York City Court

Page 625

333 N.Y.S.2d 625

70 Misc.2d 1016

PEOPLE of the State of New York v. Robert CUMMINGS, Jr., Defendant.

City Court of Batavia.

June 5, 1972.

Jeffrey D. Oshlag, Batavia, for defendant.

MEMORANDUM OPINION

LAWRENCE H. SCHULTZ, Jr., Judge.

Defendant has been charged with Grand Larceny, 2nd Degree, a Class D Felony pursuant to Penal Law, § 155.35. On Tuesday, May 30, 1972, defendant was arraigned in this Court on a felony complaint, the same having been prepared by the City Police Attorney. Upon the basis of Criminal Procedure Law, § 530.20(2)(b) no bail was set at this time inasmuch as the Court had not been furnished with a report from the New York State Identification and Intelligence System (NYSIIS), nor had the District Attorney been heard of in the matter regarding bail. The defendant was remanded to the Genesee County Jail until Wednesday, May 31, 1972, to obtain counsel and to await the receipt of the NYSIIS Report. On May 31, 1972, the defendant reappeared in City Court with his retained counsel; the District Attorney had been heard from regarding bail and the NYSIIS Report had been received, and Bail was set, whereupon the defendant was released from the custody of the Sheriff on a partially secured bail bond (CPL, § 500.10(18)). At this time defendant's attorney requested a preliminary hearing and a date was set for Monday, June 5, 1972.

On Monday, June 5, 1972, defendant appeared in City Court with his attorney. At that time a letter was received from the District Attorney addressed to defendant's counsel with a copy available to this Court stating that inasmuch as the Genesee County Grand Jury would convene on Tuesday, June 6, that there would be no preliminary hearing on Monday, June 5.

On June 5, 1972, the defendant moved for release on his own recognizance pursuant to Criminal Procedure Law, Article 180, and that furthermore, inasmuch as the District Attorney has failed or refused to proceed on a preliminary hearing on the felony complaint, that the complaint be dismissed. It is the defendant's contention that the failure to hold preliminary hearing, that CPL, § 180.70 governs: that the lack of a hearing is tantamount to granting defendant's motion that no reasonable cause exists to believe that the defendant committed a felony, that City Court ceases to have jurisdiction, as a Lower Criminal Court, to hold the defendant for the Grand Jury.

The defendant is thereby released on his own recognizance pursuant to the provisions of CPL, § 180.80. However, the motion to dismiss the felony complaint is denied.

I cannot agree with the defendant's contention that the felony complaint, under the particular set of circumstances must be dismissed. This is a new provision in the law and in particular, CPL, § 180.80 has no precedent in the Criminal Code. As a means of interpreting statutory intent reliance must be placed upon the reading of the sections of the statute, as well as the Commission Staff Comments. There is also the text authorities, consisting in the main, of 'Criminal Law of New York, The Criminal Procedure Law', by Henry B. Rothblatt (The Lawyer's Co-op Pub., Co., 1971) and 'New York Criminal Practice Under the CPL', by Robert M. Pitler (Practicing Law Institute, 1972).

In the opening section of Article 180, Criminal Procedure Law, it is stated as follows:

'1. Upon the defendant's arraignment before a local criminal court upon a felony complaint, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him and that The primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein. * * *' (CPL, § 180.10(1)) (Emphasis supplied)

One of the rights to which the defendant is entitled is a prompt hearing 'upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury.' (CPL, § 180.10(2))

Immediately following the arraignment and before bail may be set by the court the provisions of CPL, § 530.20(2)(b) must be complied with, in obtaining a NYSIIS report and notifying the District Attorney of the charge and hearing from that office. In addition the onus is upon the District Attorney to conduct a preliminary hearing, or felony hearing. In the classic case under the statute, the defendant would still be in custody and at this point the defendant's primary purpose would be to be released from custody. The preliminary hearing would accomplish this, or the expiration of the seventy-two (72) hour period, which would release him upon his own recognizance.

What then, is the purpose of the hearing? It is stated in the Commission Staff Comment, to Section 180.70, CPL as follows:

'The felony hearing is basically, a first screening of the charge; its function is neither to accuse nor to try the defendant. These steps will come later. Meanwhile, the defendant's main interest is in obtaining his release from custody. A most important function of the felony hearing, after the decision has been made to hold the defendant for the grand jury, is to determine whether he should be released and if so, under what conditions. To make this latter function meaningful, the hearing must be held promptly after the defendant has been taken into custody.'

In the instant case before the Court, the defendant had been released on bail set by the Court on Wednesday, May 31. The defendant asked for a preliminary hearing much beyond the seventy-two (72) hour period from the time of arraignment, for Monday, June 5. Therefore, the defendant was not in the Sheriff's custody at the time the...