People v. Grosunor
| Decision Date | 29 June 1981 |
| Citation | 440 N.Y.S.2d 996,109 Misc.2d 663 |
| Parties | The PEOPLE of the State of New York, v. Stephanie GROSUNOR, Defendant. |
| Court | New York City Court |
Mario Merola, Dist. Atty. (Jane Del Bianco, New York City, of counsel), for the People.
Caesar Cirigliano, New York City (Richard Finkelstein, New York City, of counsel), for defendant.
DECISION
The defendant has moved to dismiss the prosecutor's information upon the following grounds:
1. It is jurisdictionally defective as insufficient pursuant to Section 170.35(3), 100.10(3)(c), 100.35, 100.40(1), and 100.15 of the C.P.L., in that the People failed to establish every element of the offenses charged and defendant's commission thereof through non-hearsay allegations and/or supporting depositions and
2. For failure to grant defendant a speedy trial pursuant to Section 30.30(1)(b) of the C.P.L. in that the People were de facto not "ready" for trial in view of the "defective" prosecutorial information filed on March 3rd, 1980.
Relying principally on People v. Ryff, 100 Misc.2d 505, 419 N.Y.S.2d 845 (1979) and People v. Phillips, N.Y.L.J. 5/6/81, pp. 11-12, Col. 6 defendant contends that in view of the "defective information" all of the ensuing excludable days up to the instant motion should be considered in computing the 90 day limitation specified in C.P.L. 30.30(1)(b).
It is therefore, necessary to initially adjudicate whether the defect is of such nature as to mandate the dismissal of the prosecutor's information.
The defendant was arrested on a felony complaint signed by the arresting police officer, dated November 30th, 1979, upon the information supplied by another and the case set down for January 9th, 1980.
On January 9th, 1980, an adjournment to January 29th, 1980 was requested by the People.
On January 29th, 1980, the charges were reduced to a misdemeanor level upon the District Attorney's application, and adjourned to February 20th, 1980 at defendant's request.
On February 20th, 1980, an adjournment was consented to March 3rd, 1980.
Thereafter on March 3rd, 1980, the District Attorney filed a prosecutorial information, alleging all the specific and essential elements of the crimes charged. At the time no supportive affidavit or deposition was filed. Defendant requested an adjournment to March 26th, 1980.
On March 26th, 1980, the People marked the case "ready for trial." However, defendant did not appear and a bench warrant was issued, but stayed until April 9th, 1980 at request of defense counsel.
On April 9th, 1980, the bench warrant was vacated and set down for trial for April 30th, 1980 by the court.
On April 30th, 1980, all parties were ready and the case was referred to Jury Part 1 for trial, at which time the court adjourned the matter to June 4th, 1980.
On June 4th, 1980, the case was adjourned at defendant's request to July 8th, 1980, although People were ready for trial.
On July 8th, 1980, defendant failed to appear and a bench warrant was issued, but stayed until August 6th, 1980.
On August 6th, 1980, warrant was ordered to be executed at 10:50 A.M. Shortly thereafter on August 6th, 1980, defendant apparently did appear and the warrant was vacated and the case set down for August 7th, 1980 for trial.
On August 7th, 1980, the court once again marked the case for trial for September 4th, 1980.
On September 4th, 1980, a possible disposition was discussed and the case was adjourned to September 25th, 1980 by consent.
On September 25th, 1980, although People were ready, defendant requested an adjournment to October 22nd, 1980.
On October 22nd, 1980, defendant requested an adjournment to November 6th, 1980.
On November 6th, 1980, new defense counsel requested an adjournment to familiarize himself with the case. People were ready, and case adjourned to November 25th, 1980.
On November 25th, 1980, the case was sent to Jury Part 4 for trial. In Jury Part 4, the case was marked final against defendant and adjourned to December 8th, 1980.
On December 8th, 1980, again a new attorney was assigned, and set down for January 14th, 1981, for trial, marked final against defendant.
On January 14th, 1981, the People became aware of an outstanding subpoena issued to the Department of Social Services by the defendant and expressed a desire to move to squash. The case was therefore adjourned to February 5th, 1981 for the purpose of filing motion papers.
On February 5th, 1981, defendant requested additional time to respond to People's motion and case set down for February 26, 1981.
On February 26th, 1981, argument on the motion was set for February 27th, 1981 and referred to Jury Part 3.
On February 27th, 1981, the case was returned to Jury Part 1 with further argument to be had on the pending motion and set down for March 10th, 1981.
On March 10th, 1981, with submission of all papers still incomplete, the case was adjourned to March 18th, 1981, and subsequently to May 21st, 1981 for a decision.
On May 21st, 1981, a decision having been rendered, the case was again sent to Jury Part 3 with all parties ready for trial.
On May 21st, 1981, due to court's inability to commence the trial forthwith, all parties consented to select a jury and commence the trial on May 26th, 1981.
On May 26th, 1981, the defendant filed the instant motion papers.
On May 27th, 1981, the People filed a supporting deposition.
Under C.P.L. Sec. 100.10 a prosecutor's information is defined as:
In the instant case the information was filed pursuant to subdivision (c), which directs us to 100.50(2).
C.P.L. Sec. 100.50(2) states:
C.P.L. Section 100.50(2) creates the requirement that the offense charged be supported, pursuant to the standard prescribed in Section 100.40(1).
C.P.L. Section 100.40(1) states:
A careful reading of these Sections supports the requirements of a non-hearsay corroborating affidavit and C.P.L. Sec. 170.35(3)(b) states that failure to supply such affidavit creates a defective prosecutor's information. However, C.P.L. Sec. 170.30(1)(a) which speaks to the dismissal of a defective prosecutorial information, states that the court may, not must, dismiss such instrument.
Therefore, what is at issue here is whether the failure to file a non-hearsay corroborating affidavit is a substantive error which effects jurisdiction and thus non-waivable, or an error of form which may be amended, corrected or waived prior to trial.
In People v. Poll, 94 Misc.2d 905, 405 N.Y.S.2d 943 (1978), the court held the requirement that the offense charged be supported by non-hearsay allegations merely affected the form of the accusatory instrument and was not substantive in nature, and there existed no jurisdictional impediment to the defendant's prosecution.
In Poll, supra, the felony charge was reduced to misdemeanor level and the accusatory instrument was amended and deemed an information. The court held that the defendant waived all defects in the instrument when he pled not guilty to the reduced charge and that this waiver included the right to attack the information on the ground that it did not contain non-hearsay allegations.
That the defect is one of form is inherent in that court's reasoning, for a defect in the substantive jurisdictional sense would always remain non-waivable. People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901 (1957).
The Poll, supra, decision cites People ex rel Brown v. Baker, 284 App.Div. 106, 130 N.Y.S.2d 474 (1954) in which the defendant pled guilty to an information which was based solely on information and belief. There the court held that the objection concerned only the form of the instrument and as such it was waived by the defendant's plea of guilty. Since the information properly charged the defendant with the offense for which he was convicted and any objection to the form of the information was waived. The court affirmed the judgment.
In People v. Brous, 296 N.Y. 1028, 73 N.E.2d 905, the Court of Appeals affirmed a lower court decision which held an information which contained only...
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