People v. Elmer

• Citation: 2012 N.Y. Slip Op. 05125,973 N.E.2d 172,950 N.Y.S.2d 77,19 N.Y.3d 501
• Parties: The PEOPLE of the State of New York, Appellant, v. Carol ELMER, Respondent. The People of the State of New York, Respondent, v. Kevin O. Cooper, Appellant.
• Decision Date: 27 June 2012
• Court: New York Court of Appeals

19 N.Y.3d 501

973 N.E.2d 172

950 N.Y.S.2d 77

2012 N.Y. Slip Op. 05125

The PEOPLE of the State of New York, Appellant,

v.Carol ELMER, Respondent.

The People of the State of New York, Respondent,

v.Kevin O. Cooper, Appellant.

Court of Appeals of New York.

June 27, 2012.

Nicole Duvé, District Attorney, Canton (Amanda N. Nissen of counsel), for appellant in the first above-entitled action.

Richard V. Manning, Parishville, for respondent in the first above-entitled action.

Timothy P. Donaher, Public Defender, Rochester (Drew R. Du–Brin of counsel), for appellant in the second above-entitled action.

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

JONES, J.

The common issue presented by these appeals is whether an appeal lies from an oral order issued by a criminal court on a pretrial matter. In People v. Elmer, the People appealed pursuant to CPL 450.20(1) from an oral decision by the trial court that granted, in part, defendant's motion to dismiss the indictment on speedy trial grounds. In People v. Cooper, defendant sought review pursuant to CPL 710.70(2) of an oral order denying his motion to suppress evidence obtained in a search attendant to his arrest. In both cases, the Appellate Division ruled adversely to the appellants, finding that the failure to obtain a written order precluded appellate review. We conclude otherwise, holding that an appeal does lie from an oral order of a criminal court that finally disposes of the pretrial matter at issue.

People v. Carol Elmer

Defendant Carol Elmer was charged with 37 counts of over-driving, torturing and injuring an animal in violation of Agriculture and Markets Law § 353 for the alleged failure to properly care for horses within her custody. In a pretrial motion, defendant moved to controvert the search warrant used to enter her premises and to suppress evidence. Although County Court ordered a suppression hearing, the matter was adjourned several times by the People due to the ostensible unavailability of a witness. Consequently, defendant moved to dismiss the indictment on statutory speedy trial grounds.

County Court granted the motion in part, dismissing the first 22 counts of the indictment. Recounting the procedural history of the matter, the court noted the dilatory efforts of the prosecution in procuring the witness, remarking that “the People, by not being ready for a hearing, delayed, actually made it impossible [for] the scheduling of a trial, holding of a trial, and by not being ready for a suppression hearing concerning a search warrant, they should be held with post-readiness delay because it prevented the trial from going forward.” The court orally ordered that “[t]he first 22 counts are dismissed as defendant was denied her right to a speedy trial.”

The Appellate Division dismissed the People's appeal and remitted the matter to County Court for the issuance of a written order, concluding that no appeal lies from the “County Court's oral ruling dismissing the first 22 counts of the indictment [as it] was never reduced to a writing and was never entered” (84 A.D.3d 1593, 1593, 922 N.Y.S.2d 663 [3d Dept.2011] ). A Judge of this Court granted the People leave to appeal (17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011] ).

People v. Kevin Cooper

As a result of a vehicular stop, arrest and search that uncovered narcotics, defendant Kevin Cooper was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, bribery in the third degree and certain traffic violations.

Acting on an anonymous tip that a van marked by a light-colored stripe and driven by an individual wearing red shorts was transporting narcotics, the police stopped defendant's vehicle—which matched the description—after observing that it lacked a rear license plate lamp and had made an unlawful right turn without the appropriate signal. When the police approached the vehicle, they observed defendant dressed in red shorts and upon further inspection, in plain view, officers observed a grocery bag “bulging with money” on defendant's person and “a little dime baggiewith white residue” on the vehicle's console. As a result, defendant was arrested and an ensuing search recovered a small portion of cocaine secreted in defendant's right sock.

Following a suppression hearing to preclude the recovered evidence, County Court denied defendant's motion to suppress. That court remarked and orally decided that

“Officer Masik had probable cause to stop the van initially for his observation of the vehicle and traffic violations of no tail lamp and failure to signal a turn and based upon the information that he received from the individual that everything matched the description. When Officer Masik observed the residue in the console of the car he had probable cause to ask the defendant out of the car and subsequently arrest him for possession of that residue ... so the Court is going to deny the defendant's motion to suppress any evidence on the People's direct case. Your exception is noted for the record.”

Ultimately, defendant pleaded guilty to criminal possession of a controlled substance in the third degree.

On appeal from his judgment of conviction, defendant sought review pursuant to CPL 710.70(2) of the suppression court's denial of his motion to suppress. The Appellate Division, however, concluded that defendant forfeited his statutory right of review because he had entered a guilty plea prior to the transcription of the oral order (85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777 [4th Dept.2011] ). In that court's view, section 710.70(2) was inapplicable because it did not permit appellate review of an oral bench decision denying a suppression motion. In the alternative, that court also addressed the merits and concurred with the trial court's determination that defendant's arrest was supported by probable cause. A Judge of this Court granted defendant leave to appeal (17 N.Y.3d 902, 933 N.Y.S.2d 657, 957 N.E.2d 1161 [2011] ). We now reverse in Elmer and affirm in Cooper.

Discussion

The principal argument set forth by the appellants is that the term “order” encompasses both oral and written orders because the Legislature has expressly provided for a “written order” when specifically required. Accordingly, it is asserted that an appeal does lie from an oral “order.” We agree.¹

The Legislature is presumed to be aware of the distinction between the terms “order” and “written order” and thus, absent an express definition, we ascribe a broader view to its use of the unqualified phrase “order.” Where deemed necessary, the Legislature has provided for a “written order” in certain provisions of both the Criminal Procedure Law and the Penal Law ( seeCPL 195.30 [when a court approves waiver of an indictment, it must “execute a written order to that effect”]; Penal Law § 215.70 [a person is guilty of unlawful grand jury disclosure unless the disclosure was made “upon written order of the court”]; see alsoCPL 190.25[4][a]; CPL 420.10[6]; CPL 420.40[5]; Penal Law § 85.05[3][b] ). By contrast, in Elmer, the People appeal under CPL 450.20(1) which provides that the prosecution can appeal from “[a]n order dismissing an accusatory instrument or a count thereof, entered pursuant to section 170.30, 170.50 or 210.20” (emphasis added). Likewise, in Cooper, defendant relies upon CPL 710. 70(2) which provides that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty” (emphasis added). These two provisions, and other similar penal statutes, significantly, permit appeals from an “order” without further restriction. It logically follows, then, that a statute authorizing an appeal from an “order”—as opposed to a “written order”—should be construed to permit an appeal from either a written or oral order.²

This Court previously held as much in People v. Coaye, 68 N.Y.2d 857, 508 N.Y.S.2d 410, 501 N.E.2d 18 (1986). In that case, upon the defendant's motion, Supreme Court orally reduced an attempted murder conviction to a lesser degree and then immediately pronounced sentence, commencing the defendant's 30–day period to appeal as of right from the judgment of conviction under CPL 460.10. While the defendant's appeal was pending, the People obtained, some time thereafter, a written order memorializing the oral decision and then appealed from the written order on a separate appellate track. The Appellate Division ultimately consolidated the dual appeals and reversed, reinstating the jury's original conviction on the attempted murder count. The defendant contended that the People's appeal should not have been entertained because it had been commenced well beyond the 30–day period following the oral order. In turn, the People responded that an appeal is only appropriately taken upon the entry of a written order.

Under the factual circumstances of that case, where the oral decision rendered on the motion was subsumed by the judgment of conviction by virtue of the pronouncement of the sentence immediately after, we held that the People should have appealed from the oral order (68 N.Y.2d at 858–859, 508 N.Y.S.2d 410, 501 N.E.2d 18). Of primary concern was the potential unfairness engendered by the directives of section 460.10, namely, that a defendant has 30 days to appeal as of right from the judgment of conviction, whereas the People could conceivably enlarge the time to appeal by procuring a written order at a later date. Although Coaye presented unique factual circumstances, it demonstrated our willingness to sanction appeals from oral orders and we now think it is sound policy to permit such appeals so long as they are taken, in accordance with the appropriate governing criminal statute,...