People v. DiLorenzo
| Decision Date | 19 December 1990 |
| Docket Number | BTP-11 |
| Citation | 566 N.Y.S.2d 458,149 Misc.2d 791 |
| Parties | The PEOPLE of the State of New York, v. Alex DiLORENZO, III, Defendant |
| Court | New York City Court |
Victor A. Kovner, Corp. Counsel, New York City (Deborah Rand, of counsel), for plaintiff.
Morvillo, Abramowitz & Grand, P.C., New York City (Barry A. Bohrer and Joel M. Cohen, of counsel), for defendant.
Defendant Alex DiLorenzo, III, moves to dismiss two informations charging him with violating various provisions of the New York City Administrative Code. He contends that delays in this prosecution have served to deprive him of his statutory right to a speedy trial under CPL § 30.30 and his constitutional right to due process of law. He also asserts that the accusatory instruments are facially defective.
Although defendant was not arraigned on any criminal charge until after a tragic fire on March 25, 1990 at the now infamous Happy Land Social Club left 87 people dead, the Building Code violations at issue here are alleged to have taken place at that location on November 20, 1988, some sixteen months earlier. They were observed during the early morning hours of that day by a building inspector who ordered that the premises at 1961 Southern Boulevard be vacated immediately.
Thereafter, the inspector determined that defendant was the President of Clarendon Place Corporation, the corporate owner of the building. Accordingly, on November 25, 1988, he prepared four notices of violation, all issued pursuant to Titles 26 and 27 of the Administrative Code.
On November 30, 1988, the inspector mailed to defendant at the corporation's address a peremptory vacate order, the four violation notices and a universal summons type appearance ticket directing defendant's appearance in Bronx Criminal Court on February 3, 1989. Although a certified mail return receipt for this package of documents was signed on December 2, 1988, by one Diane Endall in the box marked "agent," defendant did not appear in court on February 3. As the People, in the interim, had filed the appearance ticket along with an information, a warrant was issued for defendant's arrest.
It is uncontested that, despite the well-known location of defendant's office and home in New York City, more than a year passed with absolutely no action being taken to execute the arrest warrant. The People concede that as a general rule, because of the enormous volume of such matters, warrants issued when defendants fail to appear on the return date of universal summons type appearance tickets are "simply entered in the computer system of the Police Department for future reference" in the event of subsequent arrests. In this case the warrant was never even entered into the computer.
On April 3, 1990, in the wake of news reports of the Happy Land fire and the outstanding warrant, defendant appeared in Bronx Criminal Court, the warrant was vacated and defendant was released on his own recognizance. He was arraigned on the initial information on April 20, 1990, and thereafter on superceding informations, before filing the instant motion.
Ordinarily, a criminal action commences with the filing of an accusatory instrument. See CPL § 1.20(17), 100.05; People v. Lomax, 50 N.Y.2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980). An exception to this general proposition is found in CPL § 30.30(5)(b), which provides that "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." In this matter, the People seem to concede that defendant was not "served personally" with the appearance ticket as required by CPL § 150.40(2). They part company with the defendant, however, in contending that the mere issuance and mailing of the ticket are sufficient to trigger the tolling provision of CPL § 30.30(5)(b). 1 The court disagrees.
Article 150 of the CPL must be construed, in light of its language and purpose, to require personal delivery of an appearance ticket to the defendant. See People v. Baxter, 148 Misc.2d 1009, 562 N.Y.S.2d 354 (Criminal Court Kings County 1990); cf. People v. Turkel, 130 Misc.2d 47, 494 N.Y.S.2d 984 (Criminal Court N.Y. County 1985) (CPL § 130.40 interpreted to require personal delivery of court summons); People v. J. and L. Landscaping, N.Y.L.J., Nov. 5, 1990, p. 27, col. 6 (Criminal Court Kings County) (CPL § 600.10[1] requires personal delivery of corporate summons or appearance ticket). In § 150.40(2) it mandates that, except in the case of a parking infraction, the defendant must be "served personally," and in § 150.20(1) and (2) it empowers police officers and specially authorized public servants to "issue to and serve upon such person an appearance ticket." 2
When the Legislature enacted the Criminal Procedure Law in 1970, it expanded the authority to issue such tickets in lieu of effecting full blown arrests. As explained by the Commission on Revision of the Penal Law and Criminal Code:
... an appearance ticket is a substitute for or an alternative to an arrest without a warrant. Upon the theory that the virtues of this alternative have not been sufficiently exploited, the proposal empowers the police officer to issue and serve an appearance ticket upon a person, instead of arresting him, in any case in which an arrest for a misdemeanor or an offense would be authorized ( § 150.20[1]; and similar provision is made for the issuance and service of such tickets by other public servants who are by other statutes specially authorized to do so (id., subd. 3).
Memorandum in Support and Explanation of Proposed Criminal Procedure Law (S. Int. 7276, A. Int. 4561), Commission on Revision of Penal Law and Criminal Code, March, 1970, at p. 9. The drafters thus contemplated that in the typical case the defendant would be present when the ticket was issued.
Where the defendant is not present at the time of issuance, the policy considerations favoring personal delivery are especially strong. Personal delivery to such a defendant, whose liberty will be at stake in a criminal action, serves to assure his right to adequate notice and expeditious resolution of the charges. See People v. Turkel, supra at 49-50, 494 N.Y.S.2d 984. Moreover, it not only safeguards the defendant's due process and speedy trial rights, but, as the converse has been graphically demonstrated here, it can also protect the public's interest in seeing that criminal and potentially dangerous activity is promptly addressed. See People v. Staley, 41 N.Y.2d 789, 792, 396 N.Y.S.2d 339, 364 N.E.2d 1111 (1977); People v. Johnson, 38 N.Y.2d 271, 276, 379 N.Y.S.2d 735, 342 N.E.2d 525 (1975).
The tolling provision of CPL § 30.30(5)(b) balances these considerations against the need to preserve scarce prosecutorial resources. As originally enacted, subdivision (5)(b) designated the return date of an appearance ticket as the commencement date of the criminal action for purposes of CPL § 30.30. Having been interpreted to permit the speedy trial "clock" to run against the People even in the absence of the defendant [see People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), revg. on opn of Atlas, J., at 110 Misc.2d 917, 443 N.Y.S.2d 305 (Criminal Court N.Y. County 1981) ], the statute was amended in 1982 to its present form. This change was "desirable since, in these nonfelony cases, it is unreasonable to require the prosecutor to prepare and answer 'ready' when the defendant has not complied with process." Bellacosa, 1982 Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, 1990 Supplementary Pamphlet, CPL § 30.30, at p. 59. The reasonableness of "shifting the burden" to the defendant is contingent, however, on such process having been properly served upon him in the first place.
Accordingly, where a defendant fails to appear in court after being served personally with an appearance ticket and thereby spared the...
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