People v. Henry

• Decision Date: 01 November 1995
• Citation: 634 N.Y.S.2d 983,166 Misc.2d 824
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph HENRY, Defendant.
• Court: New York City Court

Page 983

634 N.Y.S.2d 983

166 Misc.2d 824

The PEOPLE of the State of New York, Plaintiff, v. Joseph HENRY, Defendant.

Criminal Court of the City of New York,

Kings County.

Nov. 1, 1995.

Charles J. Hynes, Dist. Atty. of Kings County, for plaintiff (Lawrence Fredella, of counsel).

Bruce Roistacher, Jericho, for defendant.

MURIEL G. HUBSHER, Judge.

The defendant was originally charged with one count of Leaving the Scene of an Incident (V.T.L. § 600[2][a], a class B misdemeanor. He subsequently moved to dismiss the charge pursuant to C.P.L. § 30.30(1)(c), alleging that the People failed to convert the initial accusatory instrument into a valid information within 60 days of his arraignment.

C.P.L. 30.30(1)(c) provides in pertinent part that the People must be ready within,

"sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months;"

The first instrument was filed on June 16. This commenced the running of the 60 day period, less excludable time, within which the People must be ready for trial pursuant to the requirements of C.P.L. 30.30(1)(c). The case was then adjourned to July 17, 1995. This period of time, 31 days, is chargeable to the People.

On July 17, the case was adjourned to August 24, still lacking the corroborating affidavit. This period of time, 38 days, is, therefore, also chargeable to the People.

Based on the foregoing chronology, the court finds there are 69 days chargeable to the People, well over their 60 day B misdemeanor readiness time limit. Accordingly, defendant's motion to dismiss the initial accusatory instrument charging V.T.L. 600(2)(A) should have been granted.

On September 7, while awaiting decision, the People served and filed, a new accusatory instrument adding charges of Assault in the Third Degree (120.00(2)), a class A misdemeanor, and Leaving the Scene of An Incident (V.T.L. 600-1A), a traffic infraction. On August 24, and again on October 12, 1995, the case was adjourned to decide the 30.30 motion.

Pursuant to C.P.L. § 100.45(3), 100.50(2), and 170.65(2), the prosecution may file a replacement information which includes new factual material and additional charges. People v. Morel, 157 Misc.2d 94, 95, 596 N.Y.S.2d 325 (Crim.Ct.Kings Co.1993). The prosecutor's right to do so is subject to the rules of joinder and speedy trial (the issue presently before this court). Id. at 101, 596 N.Y.S.2d 325. It also follows that, because this is not the original accusatory instrument filed for this criminal transaction, the speedy trial time relates back to the original instrument. People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986). In addition, it is firmly established that the "District Attorney has almost unfettered discretion in determining how and when to prosecute, including the right to reduce add or amend charges." People v. Byrd, 124 Misc.2d 987, 989, 478 N.Y.S.2d 542 (Crim.Ct.N.Y.Co.1984) citing, People v. Williams, 120 Misc.2d 68, 78, 465 N.Y.S.2d 648 (1983).

Despite the fact that the speedy trial time has expired on the original charge, the People are not prohibited from reprosecuting the defendant on charges stemming from the same criminal transaction so long as the new charges "are subject to speedy trial deadlines which are longer than those which governed the misdemeanors contained in the prior accusatory instrument." Matter of Chang v. Rotker, 155 A.D.2d 49, 58, 552 N.Y.S.2d 676 (2nd Dept.1990). In the present case, the People have filed a new information containing the charge of Assault in the Third Degree (P.L. 120.00(2)), a class A misdemeanor, subject to the provisions of C.P.L. 30.30(1)(b). As to this charge, the People are entitled to the 90 day "speedy trial deadline" relating back to June 16, 1995 as opposed to the 60 day deadline for this charge. People v. Sinistaj, supra. In addition, because the charge of Leaving the Scene of an Incident (V.T.L. 600(1)(A)) is a traffic infraction, it is not subject to the time provisions of speedy trial and therefore need not be dismissed. See People v. Wise...