People v. Hauben, 2006 NY Slip Op 51155(U) (N.Y. Dist. Ct. 6/20/2006)

• Decision Date: 20 June 2006
• Docket Number: 19499/05.
• Citation: 2006 NY Slip Op 51155(U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MICHAEL HAUBEN, Defendant.
• Court: New York District Court

Page 1

2006 NY Slip Op 51155(U)

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MICHAEL HAUBEN, Defendant.

19499/05.

Nassau District Court.

Decided June 20, 2006.

Hon. Kathleen Rice, District Attorney, for the People Hempstead, NY.

Foley, Griffin, Jacobson & Faria, for the Defendant Garden City, NY.

KENNETH L. GARTNER, J.

The defendant, charged with Harassment in the Second Degree in violation of Penal Law §240.26(1), previously moved, pursuant to NY Criminal Procedure Law §170.30(1)(e), to dismiss the accusatory instrument against him, arguing that dismissal was statutorily mandated since the People had failed to ready the case for trial within the "speedy trial" time provided by CPL §30.30(1)(d).

The determinative issue, the defendant and the People at that time agreed, was whether the time between the issuance by the court (Chaikin, J.), of a summons requiring the defendant's appearance for arraignment, and the date that the defendant was required by the summons to appear, was statutorily excluded from the People's speedy trial time. If so, the People's speedy trial time would not have run; if not, then the speedy trial time would have expired and, conceded the People, dismissal would be mandated.

This Court, in People v. Hauben, 11 Misc 3d 1026, 810 N.Y.S.2d 649 (Dist. Ct., Nassau Co. 2006), determined that the time was not excludeable, and that dismissal was therefore mandated. This Court relied upon (1) the statutory language omitting the time subsequent to issuance of a summons from the exclusive list of periods to be excluded from the computation of speedy trial time, i.e., CPL §30.30(4)(i); (2) the construction of the statute by the official commentator, Preiser, Practice Commentary, CPL §30.30 (McKinney's) (2003 Main Volume); and (3) the precedent established by People v. Perangelo, Docket No. 17703/05 (Dec. 16, 2005) (Dist. Ct., Nassau Co.) (O'Brien, J.).

The People now move for reargument. Their basis for doing so is a novel asserted statutory construction. The People assert that the summons at issue is in fact an "appearance ticket" within the meaning of CPL §150.10, and that, therefore, although the time period subsequent to its issuance might not be excluded from speedy trial time by CPL §30.30(4)(i), the criminal action is nevertheless deemed by CPL §30.30(5)(b) not to have commenced, and the speedy trial time therefore not to have begun running, until the defendant's appearance, so that the motion to dismiss should, on reargument, be denied.

The People concede that they failed to raise this statutory interpretation in their original opposition to the motion. The only argument interposed by them at that time was directed to the issue of "exclusion," not "commencement." The People concede that their argument would require a determination by this Court that the court in Perangelo, the official commentary by Preiser, and additional courts (including the New York Court of Appeals) and commentators, have all misconstrued the statute. And the People concede that their asserted statutory construction has been adopted by only one court, in a decision made without extensive analysis and subsequently reversed on reargument.

Despite this, since the People's position is a non-frivolous one, well reasoned and firmly grounded in a good faith close reading and analysis of the statutory text as written, this Court is bound to consider and review this legal issue on its merits.

CPL §1.20(17) provides that "[a] criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court. . . ." It is upon commencement that speedy trial time begins to run.

As observed in this Court's prior decision in the instant case, 11 Misc 3d at 1029, 810 N.Y.S.2d at 651:

CPL §120.20 provides that where a criminal action is commenced by the filing of an accusatory instrument in a local criminal court, there are two separate alternatives to the issuance of a warrant of arrest by the court for securing the defendant's appearance. See, Preiser, Practice Commentary, McKinney's NY CPL §120.20 (2004 Main Volume). The two alternatives are: (1) the issuance by the court itself of a "summons," rather than a "warrant" (a summons being an instrument directed to the defendant, commanding him to appear in court [see, CPL §130.10], andthe warrant being an instrument directed to law enforcement, commanding them to take custody of the defendant and bring him to court); and (2) the authorization by the court of the district attorney to direct the defendant to appear.

CPL §130.10(1) provides that "[a] summons is a process issued by a local criminal court directing a defendant designated in an information, a prosecutor's information, a felony complaint or a misdemeanor complaint filed with such court. . . to appear before it at a designated future time in connection with such accusatory instrument."

CPL §30.30(4)(i) does not provide for the exclusion from the People's speedy trial time of any time prior to the appearance commanded by a summons. CPL §30.30(4)(i) does provide, however, that in computing the speedy trial time chargeable to the People, there must be excluded "the period prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been [not summoned by the court, but, rather], directed to appear by the district attorney . . . ."

Preiser, Practice Commentary, CPL §30.30 (McKinney's) (2003 Main Volume), in reflecting on this, states that CPL §30.30(4)(i) "was added in 1993 to complement expanded authority granted that year to both local criminal and superior courts for two new alternatives to an arrest warrant to secure defendant's appearance for arraignments. . . . The exclusion in paragraph [i] applies only to [the direction by the district attorney to appear]. The rationale for this exclusion is not immediately apparent and none was furnished in the sponsor's memorandum. . . . I would hazard a guess that since the period between the filing of the accusatory instrument and arraignment is not excluded when the court issues a warrant or summons, the provision was inserted to provide an incentive for the district attorney to request the court to use the least onerous method of securing defendant's appearance." See also, Marks, 7 NY Prac., New York Pretrial Criminal Procedure §9:45 (2005) ("The effect of this amendment is to encourage the use of this new device as the least intrusive method for procuring the defendant's appearance . . . . Only by use of this alternative to the arrest warrant or summons will the prosecutor be assured of avoiding being charged with post-accusatory, pre-arraignment delay.").

The People, however, now suggest that the only reason that the time prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been served with a summons was not included within the exclusion of CPL §30.30(4)(i) is that it was unnecessary to do so, the action having statutorily not yet commenced, because a "summons" is really an "appearance ticket."

CPL §150.10(1) provides that "[a]n appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense."

CPL §150.10(1) continues, "[a] notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title."

CPL §30.30(5)(b) provides that "where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket."

The People contend that the term "other public servant" includes a judge, and that therefore a summons signed by one qualifies as an "appearance ticket."

"Although the term public servant' is not defined in the CPL, the Legislature's definition of that term in the Penal Law is instructive. Penal Law 10.00(1). . . ." People v. Whitmore, 12 AD3d 845, 847 (3rd Dep't 2004), lv. to app. den'd, 4 NY3d 892 (2005). Under this definition, it would appear that the People may be literally correct.

However, as observed in People v. Bilus, 10 Misc 3d 761, 766 (Dist. Ct., Nassau Co. 2005) (DeStefano, J.) (concluding that the term "public servant" did not, for purposes or a foreign government), "it is also axiomatic that all parts of a statute must be harmonized with each other and with the general purpose of the whole statute (Statutes 98). To interpret public servant' [in the manner argued by the People] would ignore the other parts of the statute and would not comport with the statute's general purpose." The question remains whether this would also be the case in construing this term for purposes of the statute at bar.

As a matter of straightforward statutory construction, the People's interpretation proves too much. It suffers from the fact that under its broad reading of the definition of "appearance ticket," a direction to appear issued by a district attorney (also, under this reading, an "other public servant") would also qualify as an appearance ticket, meaning that a criminal action would not "commence" until arraignment where this procedure was used. This would make the statutory provision for the "exclusion" of the time before arraignment in such a circumstance, pursuant to CPL §30.30(4)(i), unnecessary. The argument would be identical to that which the People assert explains the absence of provision in CPL §30.30(4)(i) for excluding the time prior to the return date of summonses, and would render that section meaningless.

Moreover, a summons is merely "issued" by the...