People v. DeFreitas

• Decision Date: 27 April 2015
• Docket Number: 2015NY010488
• Citation: 48 Misc.3d 569,9 N.Y.S.3d 822,2015 N.Y. Slip Op. 25135
• Parties: The PEOPLE of the State of New York v. Jemeil DeFREITAS, Defendant.
• Court: New York Criminal Court

48 Misc.3d 569

9 N.Y.S.3d 822

2015 N.Y. Slip Op. 25135

The PEOPLE of the State of New York

v.Jemeil DeFREITAS, Defendant.

2015NY010488

Criminal Court, City of New York, New York County.

April 27, 2015.

The Legal Aid Society by Caroline Glickler, Esq., for the Defendant.

Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Hannah Yu, for the People.

Opinion

STEVEN M. STATSINGER, J.

In an oral ruling, this Court held that, where the sworn portion of a Domestic Incident Report (“D.I.R.”) referred to the assailant only as “he,” and did not name him, the D.I.R. did not convert the misdemeanor complaint against this defendant into an information. By written motion, the People now move for leave to reargue this point.

After carefully surveying the relevant precedent, this Court concludes that: (1) CPLR 2221(d), which authorizes motions for leave to reargue in civil cases, does not apply in a criminal case. However, the Court also concludes that: (2) a trial court in a criminal case has the inherent power to grant leave to reargue, but that power should be exercised sparingly. Finally, (3), for the following reasons, while the Court grants the People leave to reargue, on reargument, the Court (4) adheres to its original ruling.

I. FACTUAL BACKGROUND

A. The Allegations

According to the misdemeanor complaint, the complainant told Detective Francis Brennan that, on September 16, 2014, defendant grabbed the complainant by the throat and threw her to the ground, then kicked her in the ribs. Brennan also reported that the complainant told him that defendant's actions caused substantial pain.

B. Legal Proceedings

Defendant was arrested on February 15, 2015, and arraigned on a misdemeanor complaint charging him with two counts of assault in the third degree, and one count each of criminal obstruction of breathing or blood circulation, attempted assault in the third degree, and harassment in the second degree. The Court set bail and adjourned the case for conversion.

On February 20, 2015, the People filed and served a D.I.R. in lieu of a supporting deposition. As described in more detail below, the Court concluded that the D.I.R. did not convert the misdemeanor complaint into an information, and released the defendant pursuant to CPL § 170.70.

At the next calendar call, on March 12, 2015, the People asked the Court to reconsider that ruling. A different judge was in Part D that day, and he adjourned the case to March 16. On March 16, this Court refused to entertain the request, noting that any such motion would have to be in writing and on notice to the defense.

The People filed the instant written motion for leave to reargue on March 24, 2015, and the matter has been sub judice since then.

C. The D.I.R. and the Court's Ruling

The D.I.R. is a two-page document. The first page, completed by a police officer, is dated September 16, 2014. Amongst other information, it identifies the complainant and contains the officer's summary of what is alleged to have occurred. It also identifies the “suspect” as “DeFreitas, Jemeil,” and contains, inter alia, his telephone number and date of birth. The first page of the D.I.R. is unsworn.

The second page of the D.I.R. is styled as a “STATEMENT OF ALLEGATION/SUPPORTING DEPOSITION.” On the D.I.R. at issue, that page is dated September 16, 2014, and is subscribed to and verified by the complainant, Shaniqua Hale. There is a large box at the top of the page that says “Suspect Name (Last, First, M.I.),” but that box has been left blank. The narrative portion, which is handwritten, presumably by Ms. Hale, provides, in its entirety that, “He grabbed my throat and pushed me to the ground. I have a scratch on my hand and my neck and bruised [sic] on the inside of my lips.”

In concluding that the D.I.R. did not convert the misdemeanor complaint, the court made two pertinent rulings. First, it held that the first page of the D.I.R., which was completed by a police officer, could not be considered, since it was hearsay. Second, the Court held that Ms. Hale's own statement, which was not hearsay, did not convert the misdemeanor complaint because it did not identify her assailant.

II. DISCUSSION

Whether and when to grant a motion for leave to reargue a legal ruling in a criminal case is a complex and difficult question. As described below, there is conflicting precedent on a court's authority to do so, and there are compelling policy reasons to avoid needlessly delaying the progress of a criminal case by revisiting legal issues that can be addressed by an appellate court, if necessary, once the case if over. Nevertheless here, the Court concludes that it has the inherent power to grant leave to reargue, and that granting leave to reargue is appropriate. However, on reargument, the Court adheres to its original ruling.

A. Motions for Leave to Reargue

This case first calls upon the Court to consider whether a motion for leave to reargue lies in a criminal case. The Criminal Procedure Law does not contain any provision for motions for leave to reargue. Rules 2221(a) and (d) of the CPLR do provide for such a motion, but for the following reasons, the Court concludes that CPLR 2221 was never intended to apply in a criminal case and that it, in fact, does not. However, the Court also concludes that the trial court in a criminal case has the inherent power to grant leave to reargue, but that this power should be exercised sparingly.

1. CPLR 2221

a. Confusing and Inconclusive Precedent

As noted above, Rules 2221(a) and (d) of the CPLR set out the procedures and timing requirements for a motions for leave to, inter alia, reargue in civil cases. But the appellate cases addressing whether that rule should be applied in criminal cases, while somewhat inconsistent, ultimately persuade this Court that a motion for leave to reargue under CPLR 2221 does not lie in a criminal case.

Most pertinent is People v. Silva, 122 A.D.2d 750, 506 N.Y.S.2d 55 (1st Dept.1986), which held that “the CPLR has no application to criminal actions and proceedings.” That court reached the same conclusion in People v. Crisp, 268 A.D.2d 247, 700 N.Y.S.2d 693 (1st Dept.2000). There, citing Silva, the court held that

defendant's arguments [are] unavailing with regard to the applicability of CPLR provisions to this criminal proceeding. This is especially true in the absence of any express reference to the CPLR in CPL 190.50(5) and in view of the Court of Appeals' practice of interpreting CPL provisions in accordance with the CPL's statutory scheme and without resort to the CPLR.

Id. See also, People v. Holden, 260 A.D.2d 233, 689 N.Y.S.2d 40 (1st Dept.1999) (“The time set forth in CPLR 2214(b) for answering a motion was not applicable” in a criminal case).

These First Department cases are binding on this Court, and would appear to close the door. Frustratingly, however, and more recently, that same court, in People v. Godbold, 117 A.D.3d 565, 985 N.Y.S.2d 566 (1st Dept.2014), noted that a trial court had “discretion to entertain” a motion to renew under CPLR § 2221(e). But Godbold turned on the timing of the 2221(e) motion—that is, the court noted the trial court had discretion to consider an out-of-time motion—and does not seem to have squarely presented the question of whether a CPLR 2221(e) motion to renew was permitted in a criminal case at all. Id. Even despite Godbold, then, it would appear strongly that the weight of binding precedent requires this Court to conclude that a motion for leave to reargue under CPLR 2221 does not lie in a criminal action.

That said, however, the Court would be remiss on this important question if it did not dig further. The Court notes, first, People v. Mason, 15 Misc.3d 143(A), 841 N.Y.S.2d 822 (App.Term 9th and 10th Dists.2007), which observed that CPLR 2221 permits a court to reconsider a prior ruling as to a sex offender's risk classification because those proceedings “have been treated as civil, rather than criminal, in nature.” This would further suggest that the rule does not apply in a criminal case. On the other hand, in People v. Oceanside Institutional Industries, Inc., 15 Misc.3d 22, 833 N.Y.S.2d 350 (App.Term 9th and 10th Dists.2007), that same court concluded that the trial court in a criminal case properly exercised its discretion by granting the People not one, but two, motions for leave to reargue under CPLR 2221(d). In other words, these Appellate Term cases do not do much to resolve this issue.

Finally, most trial courts that have considered the question have held that CPLR 2221 applies in a criminal case, although generally without much analysis. Most recently, in People v. Bueno, 46 Misc.3d 1224(A), 2015 WL 968443 (Sup.Ct. Bronx Co.2015), the court noted the above-cited language in Silva, but nevertheless found that it was “bound to follow” the CPLR. Citing other trial court decisions, Bueno concluded that “where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR that address the issue may be applied in a criminal action.” See also, e.g., People v. Borzon, 47 Misc.3d 914, 8 N.Y.S.3d 546 (Sup.Ct. Bronx County 2015) ; People v. Sanad, 47 Misc.3d 783, 1 N.Y.S.3d 887 (Crim.Ct. Bronx Co.2015).

For the reasons below, however, this Court respectfully disagrees with Bueno and with the other courts that have held similarly.

b. Statutory Interpretation and Policy Considerations

There are both statutory and policy reasons for concluding that CPLR 2221 does not apply in a criminal caseCPLR 101 provides that the CPLR “shall govern the procedure in civil judicial proceedings in all courts of the state,” and does not provide that the CPLR will also apply in criminal proceedings. At the same time, CPL § 1.10(1) (a) provides that “these provisions”—that is, those of the CPL—shall apply “exclusively to,” inter alia, “[a]ll criminal actions and proceedings commenced upon or after the effective date thereof.” This seems to indicate that the Legislature intended to exclude the...