People v. Ferrara

• Decision Date: 20 November 1979
• Citation: 423 N.Y.S.2d 370,102 Misc.2d 253
• Parties: The PEOPLE of the State of New York v. Anthony FERRARA, Defendant.
• Court: New York City Court

Page 370

423 N.Y.S.2d 370

102 Misc.2d 253

The PEOPLE of the State of New York v. Anthony FERRARA, Defendant.

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

Nov. 20, 1979.

John J. Santucci, Dist. Atty., Queens County, by Asst. Dist. Atty. Jeffrey L. Lewisohn, Kew Gardens, for the People.

Carol Olszewski, Legal Aid Society, Queens County, Kew Gardens, for defendant.

MAX H. GALFUNT, Judge:

The defendant, charged herein with violating P.L. 120.00 (Assault in the third degree) and P.L. 140.15 (Criminal trespass in the second degree) has moved to dismiss the accusatory instrument claiming that he has been denied a speedy trial within the meaning of CPL 30.20 and CPL 30.30. The court makes the following findings of fact:

FINDINGS OF FACT

The facts in this case are undisputed.

The defendant was arrested on a felony complaint charging him with Burglary in the second degree (P.L. 140.25) and Assault in the second degree (P.L. 120.05) on September 22, 1978. The incident giving rise to these charges allegedly occurred on September 16, 1978. A felony hearing was conducted in the local criminal court on October 10, 1978. At the conclusion of the hearing, the Burglary second degree charge was dismissed and the defendant was held for the action of the Grand Jury on the Assault second degree charge. The matter was presented to the Grand Jury on November 6, 1978. An indictment was not returned. However, the Grand Jury, pursuant to CPL 190.70, directed the District Attorney to file a Prosecutor's Information charging the defendant with Assault in the third degree and Criminal Trespass in the second degree. The order approving this direction by the Grand Jury was entered on November 22, 1978. The District Attorney subsequently filed a Prosecutor's Information on January 26, 1979. The reason for this hiatus was attributed to a "backlog" in the District Attorney's Office. The case first appeared on the calendar of the local criminal court on February 13, 1979, on which date the defendant was arraigned on the new charges. From the filing of the felony complaint to the filing of the Prosecutor's Information (September 22, 1978 January 26, 1979), a period of 126 days had elapsed. From the date the order approving the direction of the Grand Jury to file a Prosecutor's Information was entered until the date the Information was actually filed (November 22, 1978 January 26, 1979), some 65 days passed.

From February 13, 1979 through August 13, 1979, the date defendant filed a "speedy trial" motion, this case appeared on the calendar of the local criminal court on numerous occasions. (199 days have elapsed from the filing of the Prosecutor's Information to the defendant's "speedy trial motion"; 181 days have elapsed from the date this case first appeared on the calendar in the criminal court until the defendant's speedy trial motion. For the purpose of this decision, the court will consider only that time to August 13, 1979, the date of defendant's motion.)

The criminal court papers indicate that the time between February 13, 1979 and August 13, 1979 was excluded from computing the CPL 30.30 time limitations since the adjournments were either at the defendant's request or on consent. However, the court papers indicate that beginning on March 21, 1979, that the reasons for the adjournments were "Pending determination of Supreme Court motion". The defendant pursuant to CPL 170.50 filed a motion in supreme court, returnable on March 26, 1979, for transcription and inspection of the Grand Jury minutes and for dismissal of the Prosecutor's Information. It appears that in response to the defendant's motion that the Grand Jury minutes were ordered on March 26, 1979 and were to be made available for inspection on April 18, 1979. The Grand Jury minutes were unavailable on April 18, 1979 due to the fact that the stenographer who recorded a portion of the Grand Jury minutes had left the office to work in the Manhattan Criminal Court. As a result of this, the Grand Jury minutes were unavailable for inspection until October 4, 1979, 169 days after they should have been made available. The People concede The defendant contends that the entire period of time while the motion was pending in the Supreme Court should be charged to the People in computing the CPL 30.30 time limitations even though the time was specifically excluded in the local criminal court. Alternatively, the defendant argues that the passage of time since the inception of this action has been so extensive that it has operated to deprive this defendant of a speedy trial within the meaning of CPL 30.20 even though no actual prejudice to the defendant's case has been shown.

that this period of delay was charged against them by the Supreme Court Justice sitting in the part where the motion to inspect was pending. From the date that the Grand Jury minutes should have been available in the Supreme Court for inspection (April 18, 1979) until the date of defendant's speedy trial motion in the local criminal court (August 13, 1979), 117 days have elapsed. (Note: after inspection of the Grand Jury minutes by the Supreme Court, the motion to dismiss the prosecutor's information was denied.)

The People contend that in the local criminal court, the court in which the defendant's speedy trial motion is pending, all of the adjournments up to the filing of the motion were at the defendant's request or on consent, and, therefore, properly excludable from the CPL 30.30 time requirements. Alternatively, the People contend that even if all the time that this action has been pending in the local criminal court is attributed to the People, good cause can be shown for the delay in prosecuting this case. They argue that the fact that the grand jury stenographer left the office is an "exceptional circumstance" that warrants exclusion of the aforementioned time periods for CPL 30.30 purposes.

The court's decision on the motion to dismiss for lack of a speedy trial has been reserved from the time it was initially made to the present in order to allow both sides to submit supplemental affidavits and memoranda of law on the issue. The court wishes to thank counsel for the professional manner in formulating the questions which must now be decided.

CONCLUSIONS OF LAW

This case presents a number of interesting questions of first impression as to the interrelations of CPL 30.20 and CPL 30.30 as well as the interaction between the Supreme Court and the local criminal court when a motion by the same defendant, but seeking different relief, is pending in each court. The issues before this Court are:

1) should the time that was charged against the People in the Supreme Court be charged against them for CPL 30.30 purposes by the local criminal court in spite of the criminal court exclusion of this time?

2) has the defendant been denied a speedy trial within the meaning of CPL 30.20 in that he has been denied due process of law?

CPL 30.30(1) states that

"a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 Must be granted where the people are not ready for trial within . . ." (emphasis supplied) "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony" (CPL 30.30(1)(b)).

The 90 day "ready rule" is applicable in this case since the defendant is charged with two class "A" misdemeanors.

Critical to any determination of a 30.30 question is when did the action commence. CPL 100.05 states in part that "(a) criminal action is commenced by the filing of an accusatory instrument with a (local) criminal court . . .". For the purposes of this section, a felony complaint is an accusatory instrument. In the instant case, the felony complaint was filed in the local criminal court on September 22, 1978. However, CPL 100.05 is modified to a certain extent by CPL 30.30(5)(c) with respect to when an action commences for CPL 30.30 purposes. CPL 30.30(5)(c) states,

"where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 or a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of Such new accusatory instrument" (emphasis supplied).

On the surface, this section appears clear. However, there is a further modification contained in the second paragraph of this section which states,

"provided, however, that when the aggregate of such period (i. e., the CPL 30.30(1) period for the charges in the new accusatory instrument) And the period of time, excluding the periods provided in subdivision four, already elapsed from the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed." (emphasis supplied)

Therefore, if the period of time between the filing of the felony complaint and the filing of the prosecutor's information when added to the period of time applicable to the charges in the prosecutor's information exceeds six months, then the People must answer ready for trial within six months From the filing of the felony complaint. See e. g., People v. Overton, 88 Misc.2d 531, 389 N.Y.S.2d 253 (Cr.Ct.N.Y.Co., 1976, J. Milonas).

The aggregate provision of CPL 30.30(5)(c) does not apply under the facts of this case. This Court holds that the period...