People v. Harvin

• Decision Date: 19 December 1984
• Citation: 483 N.Y.S.2d 913,126 Misc.2d 775
• Parties: The PEOPLE of the State of New York v. Walter HARVIN and John Cintron, Defendants.
• Court: New York City Court

Page 913

483 N.Y.S.2d 913

126 Misc.2d 775

The PEOPLE of the State of New York v. Walter HARVIN and John Cintron, Defendants.

Criminal Court of the City of New York,

Bronx County, Part AP2.

Dec. 19, 1984.

Mario Merola, Bronx Dist. Atty. (Joseph V. Sorrentino, and Peter S. Zadek, of counsel), for plaintiff.

Caesar Cirigliano, New York City by Labe M. Richman, New York City, for defendant Harvin.

Caesar Cirigliano, New York City by Jerald D. Kreppel, New York City, for defendant Cintron.

BERTRAM D. KATZ, Justice:

In a case that presents a unique opportunity to examine the effects of the holding in People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548, rev'g 112 Misc.2d 790, 450 N.Y.S.2d 136, on reasoning at 110 Misc.2d 917, 443 N.Y.S.2d 305, on marijuana and firearms cases, the defendants have moved to dismiss the misdemeanor charges of criminal possession of a weapon and criminal possession of marijuana on speedy trial grounds. CPL 30.30; Penal Law 265.01(1); 221.10(2).

The defendants were arraigned on misdemeanor complaints on February 22, 1984. Two days later, the People purportedly obtained a copy of the ballistics report dated February 23, 1984. The report states that the .32 caliber pistol seized from the defendants is operable. The report was deposited in the People's case file, where it languished for many months.

On April 5, in a written response to a discovery motion, rather than turning over the report (CPL 240.20(1)(c)), the People invited the defendants to inspect the ballistics report "in our folder." It does not appear that the defendants ever availed themselves of this opportunity.

The People announced their readiness on the record on October 3, 1984. ¹ However, the ballistics report was not filed with the court until November 26, 1984, in an answer to the instant motion to dismiss.

As to the marijuana charge, the arresting officer's complaint charges the defendants with possession of "alleged" marijuana "in excess of 25 grams." A laboratory analysis dated August 14, 1984 came into the People's possession, according to their sworn affirmation, on September 5. The report indicates that marijuana is present in the vegetable matter seized from the defendants in the amount of two ounces and thirty-two grains. This report was not filed with the court, or its existence even alluded to, until November 26.

In both cases, the defendants contend that the People have failed to convert the complaints to valid informations within the time constraints of CPL 30.30. People v. Colon, supra; People v. Thompson, 111 Misc.2d 521, 444 N.Y.S.2d 378, affd. 120 Misc.2d 444, 467 N.Y.S.2d 348; People v. Arturo, 122 Misc.2d 1058, 472 N.Y.S.2d 998. It is alleged that, without a scientific determination of operability, the firearms charge is jurisdictionally deficient. Correspondingly without a scientific analysis of the alleged marijuana, the allegation that marijuana was possessed by the defendants is incompetent evidence, if not hearsay. Failing this, the defendants argue that a proper determination of the weight of the alleged marijuana, which bears directly on the degree of offense charged under Article 221 of the Penal Law, is a prerequisite to a sufficient information. Since the alleged conversion of the complaints occurred nine months after the commencement of the action, the defendants seek dismissal of all charges due to the failure of the prosecution to afford them a speedy trial.

In rebuttal, the People argue that the firearms complaint should be considered converted by virtue of the fact that a ballistics report was open to the defendants' perusal at all times upon request, and that the defendants were so advised. In regard to marijuana, the People rely on the recent People v. Hernandez, 124 Misc.2d 376, 476 N.Y.S.2d 459, for the proposition that a lab report is not needed to convert an information relating to marijuana, which any police officer is capable of recognizing. It is further argued that any person of normal intelligence is capable of operating a scale for determining the aggregate weight of marijuana.

Informations

A valid information under the Criminal Procedure Law (CPL 100.15; 100.40) serves at least three purposes. It must state the offense charged with sufficient particularity to prevent multiple prosecutions for the same offense. It also must be sufficiently specific to provide fair warning of the offense charged to enable the defendants to prepare adequately for trial. People v. Crisofulli, 91 Misc.2d 424, 398 N.Y.S.2d 120, citing People v. Bertram, 302 N.Y. 526, 99 N.E.2d 873. Finally, and most applicatory to the instant case, in order to prevent the bringing of baseless prosecutions, all elements of the crime charged in an information must be supported by non-hearsay allegations of persons subject to the penalties of perjury for false swearing. People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330; People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323; see generally, People v. Flushing Hospital, 122 Misc.2d 260, 471 N.Y.S.2d 745; CPL 100.40.

These non-hearsay allegations must be of an evidentiary character supporting or tending to support the charges. CPL 100.15(3); 100.40(1).

Since these allegations will usually represent the only formal accusation and expression of the charges that the defendant will have to meet before trial, an information must exhibit not only reasonable cause, but also a prima facie, or legally sufficient case. See Bellacosa Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 100.40 p. 67. As such, the allegational content of an information is closely analogous, if not identical, to the quantum of evidence before the Grand Jury sufficient to withstand a motion to dismiss for legal insufficiency. In both cases, the standard is a prima facie, or legally sufficient case. CPL 190.65(1); 70.10(1); 100.40(1); Cf. People v. Steiner, 77 A.D.2d 13, 432 N.Y.S.2d 83 with People v. Crisofulli, 91 Misc.2d 424, 398 N.Y.S.2d 120, supra.

A prima facie case is that quantum of competent and admissible evidence such that, if unexplained and uncontradicted, would warrant a conviction. People v. Howell, 3 A.D.2d 153, 161, 158 N.Y.S.2d 985, affd. 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867; People v. Potwora, 44 A.D.2d 207, 354 N.Y.S.2d 492.

Ballistics

What would constitute a prima facie case for a misdemeanor charge of possession of a firearm? (Penal Law 265.01(1)).

It is well-settled that an essential element of the crime of possession of a firearm is proof of operability. People v. De Witt, 285 App.Div. 1157, 140 N.Y.S.2d 190; People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630, affd. 11 N.Y.2d 841, 227 N.Y.S.2d 668, 182 N.E.2d 278; People v. Fwilo, 47 A.D.2d 727, 365 N.Y.S.2d 194; People v. Donaldson, 49 A.D.2d 1004, 374 N.Y.S.2d 169. In the ordinary case, no valid indictment can result unless the grand jury receives competent evidence of the operability of the firearm, since possession of an inoperable one is not per se violative of the Penal Law. Donaldson, supra; People v. Burdash, 102 A.D.2d 948, 478 N.Y.S.2d 89.

Such proof of operability is most commonly, and conveniently, established through the introduction of a ballistics report (CPL 190.30), although any element of a crime may be established circumstantially. See People v. Borrero, 26 N.Y.2d 430, 311 N.Y.S.2d 475, 259 N.E.2d 902; People v. Wright, 68 A.D.2d 930, 414 N.Y.S.2d 368.

The preparation of the ballistics report itself could hardly be simpler. A test shot is made by the technician. (See Matter of Nelson R., 83 Misc.2d 1081, 374 N.Y.S.2d 982).

Therefore, in order to be prima facie sufficient on its face, an information must allege in non-hearsay form, by facts of an evidentiary nature (CPL 100.15) the operability of the firearm. This the instant information fails to do. In gun possession cases of this type, the ballistics report takes on the character of a supporting deposition. CPL 100.20. The filing of such a report converts the jurisdictionally insufficient complaint to an information. CPL 170.65.

The People have conceded the insufficiency of the accusatory instrument, but have attempted to salvage matters by arguing that a complaint can be converted to an information, not by filing documents with the court, but by depositing them in the prosecutor's file.

Simply stating this proposition is enough to discredit it. The prosecutor must file with the court an accusatory instrument sufficient in its allegations to confer jurisdiction upon the court. People v. Colon, supra; People v. Thompson, supra. There is no notice to the defendants, or to the court for that matter, where the alleged accusation is tucked away in the District Attorney's folder. CPL 1.20(4), (7), (8), (17); 100.20.

As a further consideration, one must be cognizant of the gross injustice of incarcerating a defendant, in the absence of proof of operability, for the five-day-period of CPL 170.70, when the same defendant faced with felony charges would necessarily be paroled under CPL 180.80. Where a test procedure of such simplicity could cause dismissal of a case totally lacking in prosecutorial merit, it is similarly inexcusable to place such person in jeopardy for the minimum speedy trial period of 90 days, to say nothing of the waste of court resources. The date of the ballistics report in this case, one day after the arrests, illustrates the ease with which a prima facie case can be demonstrated to the court if the effort is made.

Accordingly, in regard to the charges of P.L. 265.01, the court holds that an insufficient information, or misdemeanor complaint was pending in this case from February 22 until November 26, 1984, a period greatly in excess of the 90-day statutory requirement of CPL 30.30. ² Therefore, this charge is dismissed summarily as to both defendants. People v. Colon, supra; People v. Thompson, supra.

Marijuana

Turning now to the marijuana charge, the People contend that a...