People v. Hurt
| Decision Date | 07 May 1974 |
| Citation | 355 N.Y.S.2d 728,78 Misc.2d 43 |
| Parties | The PEOPLE of the State of New York v. Marco Polo HURT, Defendant. |
| Court | New York City Court |
Mario Merola, Dist. Atty., Bronx County, by Joseph A. Suarez, Asst. Dist. Atty., for the People.
William J. Vanden Heuvel, New York City, for defendant.
This is an application by defendant for leave to reargue a prior decision of this Court granting a motion, made by the People, for an order vacating and setting aside a prior Adjournment in Contemplation of Dismissal pursuant to § 170.55.
Defendant was arrested on November 1, 1973, charged with the violation of § 205.25 of the Penal Law, Introducing Contraband into a detention facility. On November 14, 1973, the case appeared on the 1D Calendar and on motion of the ADA, the charge was reduced to § 205.20, a misdemeanor, and an Adjournment in Contemplation of Dismissal (hereinafter referred to as ACD) pursuant to § 170.55 was granted on consent of all parties. On November 14, later the same day, the Assistant District Attorney appeared in this Court and made application ex parte to restore the case to the Calendar and to vacate the ACD. The Court granted the application to the extent of restoring the matter to the Calendar for November 26, 1973, to notify all parties. On the stated date all parties appeared before the Court and after hearing the ADA's arguments in favor and the defendant in opposition, the Court granted the People's motion and vacated the ACD. Defendant now urges, in support of his motion to re-argue, the following grounds:
(1) That there was no showing
(1) That there was no showing of good cause to grant the application;
(2) That an evidentiary hearing was required before such application could be granted; and (3) That granting such order without a hearing was a violation of defendant's constitutional rights.
Section 170.55 effective September 1st, 1971, of the Criminal Procedure Law is as follows:
'1. Upon or after arraignment in a local criminal court upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be 'adjourned in contemplation of dismissal,' as prescribed in subdivision two.
The question before this Court is whether the term 'must' in the statutes is to be construed as mandatory or directive. Whether, on application of the People, the Court has discretion to grant or deny the motion to restore the case to the calendar and to vacate the ACD.
Research has provided no cases in point. Resort, therefore, must be had to statutory construction. In the construction of a statute the basic rule of procedure and the primary consideration of the Court is to ascertain and give effect to the legislative intent, McKinney's Consolidated Laws Statutes section 92. Whether a given provision in a statute is mandatory or directive is to be determined primarily from the legislative intent gathered from the entire act and the surrounding circumstances, keeping in mind the public policy to be promoted and the results that would follow one or the other conclusions. People ex rel. McEvoy v. Duffey, 104 Misc. 35, 171 N.Y.S. 962; People v. Karr, 240 N.Y. 348, 148 N.E. 546. The quest, therefore, is to ascertain the legislative intent.
The procedure under § 170.55 of the Criminal Procedure Law has no counterpart either in the former Code of Criminal Procedure or the New York City Criminal Court Act. Professor Richard G. Denzer, in his practice commentaries says, 'The enactment of this section was intended to codify the practices prevailing in the New York City Courts known as 'DOR' or Discharge on Own Recognizance.'
What then, is the DOR? The Assembly Judiciary Committee found that
'The DOR is a judicially evolved mode of disposition of a case pursuant to which, on application of the defendant and with the consent of the People, a defendant is released from custody on supervision without the payment into Court of any fund or security and without any formal disposition of the complaint made against him.'
It further found that
'The remedy (the DOR) was developed, it is believed, as an equitable relief whereby a case might be disposed of to the satisfaction of the defendant, while at the same time, reserving to the People the power to reinstate the case, if needed, in instances in which middle ground was desirable.'
Report of the Judiciary Committee of the Assembly No. 37, 1963.
Under the DOR, the authority for which was derived from section 669 of the CCP, a case may be continued from term to term and defendant discharged on his own undertaking to be brought to a final disposition either by the People's motion to restore to the Calendar or defendant's motion to dismiss. Requiem for the DOR, Bronx Bar Association Advocates 3/5/63, Judge J. Howard Rossbach.
After reviewing the history and background of the DOR, the Judiciary Committee then recommended to the Assembly an express authorization for the DOR. The Legislature, therefore, had before it the history and background of the DOR together with the case law prior to enactment of its successor, the present ACD.
In the leading case on DOR, Silver v. Gassman, 6 A.D.2d 694, 171 N.Y.S.2d 314 (1958), the court came to grips with a DOR problem similar to that with which we are here confronted. The Supreme Court, in reversing a lower court order denying an application by the People to vacate DOR, held that vacating DOR and restoring the case to the calendar was a ministerial act which must be exercised by the court on application of the People. That it was the responsibility of the People to bring the defendant to trial, and the court does not have the power to determine for the People who should be prosecuted for crimes and who should be brought to trial, citing McDonald v. Goldstein, 191 Misc. 863, 83 N.Y.S.2d 620, aff'd, 273 App.Div. 649, 79 N.Y.S.2d 690. The Appellate Division affirmed.
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U.S. v. Flowers, 96-CR-1064 (02)(JBW).
..."discharge on own recognizance." N.Y.Crim. P. Law § 170.55 (McKinney 1993) (Practice Commentaries); see also People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728 (N.Y.City Crim.Ct.1974) (reinstatement of case upon motion of district attorney; discussion of development of ACD from D.O.R.). D.O.R.......
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Richard C., Matter of
...v. Gassman, supra ). No right to a hearing accrues to a defendant, nor does he possess standing to contest this action (People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728; People v. Goldstein, 79 Misc.2d 996, 361 N.Y.S.2d In People v. Hurt, supra, the Criminal Court refused to grant a hearing ......
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People v. Goldstein
...whether a defendant is entitled to a prior hearing before the court restores a case to the calendar can be found in People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728 (Crim.Ct. of the City of N.Y., Bronx Co., 1974). In that case, the defendant was arrested and charged with a misdemeanor. An ad......
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People v. Miterko
...(People v Meyerson, 165 Misc 2d 476, 478; Matter of Gabriel M., 128 Misc 2d 313, 315; People v Paar, 89 Misc 2d 11, 13; People v Hurt, 78 Misc 2d 43, 45; People v Pomerantz, 76 Misc 2d 766, 767). Under the terms of a D.O.R., a defendant was released on his own recognizance for an indefinite......