People v. Goshorn

• Decision Date: 04 June 2012
• Docket Number: No. 63515C2011.,63515C2011.
• Citation: 35 Misc.3d 1244,954 N.Y.S.2d 761,2012 N.Y. Slip Op. 51093
• Parties: The PEOPLE of the State of New York v. Kenneth GOSHORN, Defendant.
• Court: New York Supreme Court

35 Misc.3d 1244

954 N.Y.S.2d 761

2012 N.Y. Slip Op. 51093

The PEOPLE of the State of New York

v.Kenneth GOSHORN, Defendant.

No. 63515C2011.

Supreme Court, Bronx County, New York.

June 4, 2012.

Decision and Order

RALPH A. FABRIZIO, J.

Two questions are addressed in this decision, one substantive and one procedural. They are also largely rhetorical, given the clearly worded controlling statutes and the mountain of binding legal authority. First, must a misdemeanor pleading charging a defendant only with resisting arrest [PL § 205.30] contain objective facts that enable the court reviewing the accusatory instrument for facial sufficiency to determine whether the arrest allegedly resisted was legally authorized? Second, must a motion seeking to dismiss such an accusatory instrument for facial insufficiency be made in writing? The answers to these questions are painfully obvious—yes and yes.

Defendant was arrested more than six months ago, apparently after the police responded to a call for help from a residence regarding a domestic dispute. The sole charge is resisting arrest. In the factual portion of the pleading, the arresting officer states that “upon attempting to arrest the defendant for criminal mischief in the fourth degree, the defendant did resist arrest in that he pulled his hands away and flailed his arms, refusing to be handcuffed.” No other facts are pled.

Defendant was arraigned on this instrument on November 25, 2011. The minutes show that the arraignment judge, sua sponte, asked the People whether they could tell him whether they had any facts about the probable cause for the arrest. The prosecutor responded, “It's the People's information that the underlying cause for this arrest was that the defendant and his girlfriend, or significant other, did have an argument, and ... the defendant actually broke a mirror, causing glass to shatter all over the apartment. Ultimately, the complaining witness did not want to go forward, but that was the underlying reason.” The judge responded, “I think that has to be put in the complaint factually in some fashion, other than the conclusion of criminal mischief, but that's okay.” Defendant made no application of any kind. The People stated “ready” for trial.

On the next court date, January 5, 2012, defense counsel told the judge presiding that day, the Honorable Colleen Duffy, that the case was on for “redraft. It was deemed facially insufficient by a judge in arraignments.” The People said they believed the accusatory instrument was a legally sufficient information, and “request[ed] that any facially insufficient motion by defense be made in writing so the People can respond.” Counsel replied, “It was granted in arraignments at the time, which was actually statutorily appropriate to make it orally. I don't see why we should write ...” The prosecutor interrupted counsel, stating, “The People don't have a note that it was granted.” Justice Duffy stated, “I just have a note to join the open case.” Counsel challenged the judge, stating, “I'm happy to order the minutes.” Justice Duffy said, “All right, I don't have an indication. It just says “join.” Justice Duffy reviewed the accusatory instrument upon request of counsel, and said, “I think the People need to file a superseding to set forth what the basis for the lawful arrest was.” The prosecutor responded, “Yes, your honor.” The case was adjourned, at defense request, for three months. The judge ended the record by suggesting the People “file the superseding.”

On April 5, 2012, the case appeared before this Court. Defense counsel indicated, in substance, that two prior judges had ruled the information was facially insufficient, ordered the People to file a superseding information, and that the case was on for dismissal. No marking on the Court file indicated the case was on for dismissal that day; Justice Duffy did write, “People must file superseding to allege basis of arrest.” This Court reviewed the accusatory instrument and came to its own independent conclusion: without facts in the pleading demonstrating the legal basis for the arrest allegedly resisted, the information was facially insufficient. Defense counsel had not filed a written motion to dismiss, and orally argued that the case should be dismissed pursuant to CPL § 30 .30, as more than ninety days had passed since the arraignment. The People once again demanded the motion to dismiss be made in writing. The Court, over the People's objection, conditionally dismissed the case on the procedurally insufficient oral application, and stayed the order for thirty days. The Court indicated the basis for its belief that the accusatory instrument was facially insufficient, and told the People that if, upon review, they believed they had a meritorious legal argument to the contrary, the Court would require the question be litigated on written motion.

On May 4, 2002, the People demanded that the application to dismiss be made in writing. The People stated, in substance, that the supervisor of the complaint room had approved this accusatory instrument.¹ The Court rescinded its provisional dismissal order, and directed defendant to comply with the statute and file a written motion.

In a sworn affirmation in support of the motion, counsel states that “[o]n November 25, 2011, at the defendant's arraignment, defense counsel argued that the accusatory instrument was facially insufficient as it failed to allege any facts to support the unlawfullness of the underlying arrest ... The court agreed with defense counsel, deemed the complaint insufficient, but granted the prosecution leave to file a superseding information.” In the same affirmation, counsel states “[o]n January 5, 2012 ... Judge Colleen Duffy again deemed the complaint insufficient and directed the People to supersede or dismiss on the next court date.” In the affirmation, counsel questions the People's “refus[al] to concede that their statutory time pursuant to CPL § 30.30 had passed” during the oral application to dismiss, and chides the People for not offering “lawful grounds” for challenging the provisional dismissal order, “nor [give] any explanation ... for ... fail[ing] to comply with the prior Justice's directives to supersede or dismiss.”

Counsel's inaccurate representations about what applications and legal rulings were made prior to this Court's involvement in this case are troubling in and of themselves. If they are to be read as strong advocacy arguments, they underscore a pervasive misapprehension about the need to have written applications to dismiss an accusatory instrument absent agreement of the People, as well as what power a judge can exercise on an oral application. Each judge involved did as much as the Criminal Procedure Law allows absent a written motion.

When a defendant is arrested without a warrant, and an accusatory instrument is drafted, the arraignment judge has the responsibility of ensuring that the pleading is “sufficient on its face, as prescribed in [CPL] section 100.40,” even in the absence of any oral defense application. CPL § 140.45. See generally People v. Machado, 182 Misc.2d 194 (Crim Ct Bronx Cty 1999). This is not a facial sufficiency determination directed to all parts of the accusatory instrument. Under this section of the Criminal Procedure Law, the judge must determine whether sufficient facts are presented to determine the existence of “reasonable cause to believe that the defendant committed the offense charged.” Id. The arraignment court may not dismiss a case on any other ground at this stage based on any oral application. The arraignment judge may express his or her opinion about whether there is uncorroborated hearsay, or some other pleading deficiency, but those are not considered binding legal rulings because they do not relate to this section of the Criminal Procedure Law. Where the accusatory instrument itself does not contain facts that establish “reasonable cause” existed for the arrest, the arraignment judge has no authority to curtail the defendant's liberty, and must dismiss the accusatory instrument; this is even true if the accusatory instrument is a felony complaint. See Matter of Fitzpatrick v. Rosenthal, 29 AD3d 24, 30–31 (4th Dept 2006). An order dismissing a case pursuant to CPL § 140.45 is not subject to appeal by the People. People v. Hernandez, 98 N.Y.2d 8 (2002). However, if the arraignment judge is satisfied that “sufficient facts exist ... to draw and file an accusatory instrument that is sufficient on its face,” the judge may not dismiss the case, but must instead allow the prosecution to proceed and permit the People to draft a sufficient accusatory instrument. CPL § 140.45; Cf. People v. Gonzalez, 184 Misc.2d 262, 264 (App Term 1st Dept 2000).

Here, the arraignment judge performed the requisite inquiry on his own. Recognizing that the accusatory instrument did not state any facts from which the judge could determine whether the police had probable cause to arrest defendant for criminal mischief, or any other crime, he simply asked the People if they had such facts. The judger learned that sufficient facts existed to find probable cause to arrest defendant for criminal mischief. The arraignment court had no power to dismiss the case. Defendant made no application for this, or any other relief. The judge advised the People to put the facts they related about the basis for the arrest in a new accusatory instrument.

Although it was clear the People chose not to follow that advice, defendant made no written application to dismiss the case prior to the next court date. Justice Duffy therefore also had no power to dismiss the case based on any oral application, or to order the People to dismiss the case. Like the arraignment judge, Justice Duffy did what appropriate: she inspected the information, advised the People of her belief that the accusatory instrument lacked a sufficient factual basis for her to find that...