People v. D'Alessio

• Decision Date: 01 December 1986
• Citation: 134 Misc.2d 1005,513 N.Y.S.2d 906
• Parties: The PEOPLE of the State of New York, v. Paul D'ALESSIO Defendant.
• Court: New York City Court

Page 906

513 N.Y.S.2d 906

134 Misc.2d 1005

The PEOPLE of the State of New York, v. Paul D'ALESSIO Defendant.

Criminal Court of the City of New York Richmond County.

Dec. 1, 1986.

Nancy E. Laffey, Asst. Dist. Atty., Richmond County, for the people.

Philip G. Minardo, Staten Island, for D'Alessio.

ALAN J. MEYER, Judge.

Defendant moves to dismiss People's complaints on the ground that People failed to prosecute within ninety days as required by law.

On December 6, 1985 defendant, Paul D'Alessio, was arrested and charged with operating a motor vehicle while intoxicated (VTL Sec. 1192(2)(3)), leaving the scene of an accident (VTL Sec. 600) and resisting arrest (Penal Law Sec. 205.30). At the time of the arrest, D'Alessio was given a desk appearance ticket (DAT) with a return date of January 10, 1986.

On January 10, 1986 defendant came to court in response to the DAT but the arresting police officer failed to appear and the People were not otherwise prepared to file an accusatory instrument. Defendant was told to return to court on February 6, 1986. On that date, the People were still not prepared to file the accusatory instrument and defendant was told to return to court on March 6, 1986.

On March 6, 1986, the accusatory instrument was filed and D'Alessio arraigned. The matter was then adjourned to March 27, 1986, time chargeable to the People for a corroborating affidavit. March 27, 1986, the case was adjourned to April 16, 1986 for defendant's motions and on April 16, 1986, it was adjourned to May 1, 1986 for People to respond to defendant's motions but on that date, the court adjourned the matter to May 15, 1986 for a Huntley Hearing. The People were not ready on May 15th and the matter was adjourned to May 30, 1986 at which time the People were still not ready and the action was again adjourned to June 5, 1986. D'Alessio requested an adjournment on June 5th and on June 24, 1986, he submitted this motion to dismiss on speedy trial grounds.

The speedy trial guarantee embodied in the CPL is intended to ensure fair treatment of every accused person awaiting trial and serves society's interests in seeing those accused of crime being quickly brought to justice. (People v. Anderson, 66 N.Y.2d 529, 534, 498 N.Y.S.2d 119, 488 N.E.2d 1231.) Under the law, if the People are not ready within the time limits provided by statute, defendant's motion to dismiss must be granted (CPL 30.30 Subd. 1.). Here, all of the crimes charged against defendant are misdemeanors, at least one of which is punishable by a sentence of imprisonment of more than three months and, therefore, the People are obligated to answer ready for trial within 90 days of commencement of the action (CPL 30.30 subd. 1, par. (b)).

The question arising from the instant case is, for purposes of determining speedy trial, when does the action commence in a criminal case where defendant was not arrested and brought before the court but merely served with an appearance ticket requiring him to appear in court on a given day.

The CPL defines a desk appearance ticket as "a written notice issued by a public servant,--requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein." (CPL 1.20 subd. 26). An accusatory instrument is defined as "an indictment, an information, a prosecutor's information, a Superior Court information, a misdemeanor complaint or a felony complaint" (CPL 1.20 subd. 1).

The relevant sections of law applicable to the facts herein are CPL 150.50 and CPL 30.30(5)(b). These sections give rise to the question, whether the filing of an accusatory instrument is necessary to commence a criminal action in which the defendant was issued a DAT.

CPL 150.50(1) states: "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, an information, a simplified information or a misdemeanor complaint charging the person named in such appearance ticket with the offense specified therein". On its face, CPL 150.50 appears to support the general rule that a criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (CPL 1.20 subd. 17). The CPL definition of a DAT seems also to suggest that the issuance of an appearance ticket, standing alone, does not commence a criminal action, but that the DAT must be followed by the filing of an appropriate accusatory instrument which would then commence the action, (McClellan v. NYC Transit Authority, 111 Misc.2d 735, 444 N.Y.S.2d 985 1981). See also People v. Rodriguez, 90 Misc.2d 356, 394 N.Y.S.2d 542 (1977), which held that an appearance ticket is merely an invitation to appear which gives the court neither jurisdiction of the defendant nor subject matter.

CPL 150.50 must, however, be reconciled with CPL 30.30(5)(b) which states that for purposes of speedy trial, "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). This section strongly suggests that a defendant's appearance in court in response to a DAT commences the criminal action even when there is no filing of an accusatory instrument in connection with such action. A look into the history and purpose of CPL 30.30(5)(b) is important to the understanding of this section.

Prior to May 1982, CPL 30.30(5)(b) read "where a defenda has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date such appearance ticket is returnable in a local criminal court". At that time, a defendant served with a DAT could fail to appear in court on the return date of the DAT and courts could and would rule that the speedy trial time began to run against the People from the date defendant was required to appear, even though he may have failed to do so. A case in point is People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305 (1981), in which a New York City Criminal Court dismissed People's DAT complaints against defendant on the grounds that People failed to convert the complaints to informations within 90 days. The court dismissed the complaints notwithstanding the fact that defendant failed to appear at the time each DAT was returnable and remained absent until approximately one month before making his motion to dismiss the complaints.

Colon was subsequently reversed by the Appellate Term (People v. Colon, 112 Misc.2d 790, 450 N.Y.S.2d 136 (1982)) but in response to the criminal court's decision in that case, the legislature, in May 1982, amended CPL 30.30(5)(b) to start the running of the "clock" of the time within which a trial must commence for a defendant issued a DAT. So, notwithstanding the seemingly overwhelming support of the view that mere issuance of a DAT, without more, cannot constitute commencement of a criminal action, (McClellan v. New York City Transit Authority, 111 Misc.2d 735, 738, 444 N.Y.S.2d 985 (1981), supra), that view is questionable in light of CPL 30.30(5)(b), as amended in May, 1982, which clearly states that, for purposes of speedy trial, in an action where defendant has been served with an appearance ticket, that criminal action must be deemed to have commenced on the date the defendant first appears in response to the ticket. Thus, it appears that a limited exception was created to the general rule that the filing of an accusatory instrument is necessary to commence a criminal action.

If this Court adheres strictly to the concept that 30.30 time does not begin to run until the actual...