People v. King Solomon

• Decision Date: 19 April 1982
• Citation: 449 N.Y.S.2d 875,113 Misc.2d 790
• Parties: The PEOPLE of the State of New York v. KING SOLOMON, a/k/a Mitchell Kings.
• Court: New York Supreme Court

Page 875

449 N.Y.S.2d 875

113 Misc.2d 790

The PEOPLE of the State of New York v. KING SOLOMON, a/k/a Mitchell Kings.

Supreme Court, Criminal Term Kings County, Part 51.

April 19, 1982.

Elizabeth Holtzman, Dist. Atty., Kings County by Jeffrey Bronster, Asst. Dist. Atty., Brooklyn, for the People

Caesar Cirigliano, Legal Aid Society, Brooklyn, for defendant; Robert Newman, Brooklyn, of counsel.

MEMORANDUM

IRVING M. KRAMER, Justice.

This case presents several interesting and unusual questions for which there does not appear to be any specific guidelines or procedures in the Penal or Criminal Procedure Laws to aid in their resolution. This memorandum is being written not only to explain the court's determination of these issues, but also, hopefully, that it will receive the attention of the Legislature to enable it to correct what this court perceives to be a deficiency in the statutory scheme with respect to CPL § 200.60 (Special Information).

The questions presented and considered by this court are set forth in the order of their treatment in this memorandum:

1. Is a special information, provided for in CPL § 200.60, amendable?

2. Can a defendant controvert a prior conviction set forth in a special information even though no procedure for doing so is set forth in CPL § 200.60?

3. If the defendant is to be permitted to controvert a prior conviction contained in a special information, what is the proper vehicle to bring on such attack?

4. Which party shall carry the burden of proof--the defendant or the People?

5. When should such a motion be made to be deemed timely?

FACTUAL BACKGROUND

The defendant, an indigent street person with a history of psychiatric problems, was indicted for the crimes of attempted assault in the second degree and two counts of criminal possession of a weapon in the third degree. The indictment charged the two weapon counts as felonies rather than misdemeanors because of defendant's prior conviction for a misdemeanor.

In conformity with CPL § 200.60, and after the trial was commenced (and in this case after the jury was selected and sworn), the defendant was arraigned on a special information alleging the defendant's conviction for a prior crime on January 5, 1980. The defendant denied a conviction on that date. The District Attorney, after reviewing his file, moved to amend the special information to read November 5, 1980 stating the incorrect date was the result of typographical error. The motion to amend the special information was granted. The defendant thereupon admitted his conviction on November 5, 1980 but claimed it was unconstitutionally obtained (inadequate plea allocution) and consequently could not be the basis for the elevation of the two counts of criminal possession in the fourth degree (a misdemeanor) to criminal possession in the third degree (a felony).

This court directed defendant's counsel to immediately prepare and serve an order to show cause why the relief sought should not be granted. After service and argument of the order to show cause, this court granted a hearing on the question of the constitutionality of the prior conviction. Upon conclusion of the hearing this court found that the prior conviction had been unconstitutionally obtained holding that it would charge the two criminal possession counts as misdemeanors and not as felonies. The court charged the jury accordingly and the defendant was convicted of attempted assault in the second degree and two counts of criminal possession in the fourth degree.

AMENDING THE SPECIAL INFORMATION

Neither the Criminal Procedure Law nor the Penal Law authorize the amendment of a special information although there are specific provisions for amending an indictment (CPL § 200.70) and a bill of particulars (CPL § 200.90).

In People v. Giuliano, 52 A.D.2d 240, 243, 383 N.Y.S.2d 878, the court determined a "... special information is ... in the nature of a bill of particulars which tells the defendant which particular conviction the A posteriori, it seemed to this court that if the Legislature considered it sufficiently important to make special provisions for amending an indictment or a bill of particulars, that it would be equally efficacious to similarly provide for the amending of a special information.

                District Attorney intends to rely on to sustain the felony indictment".  Therefore, to this court, logic and reason dictated that if a special information is in the nature of a bill of particulars which can be amended, then this court had the inherent power to permit the amendment of a special information after first inquiring into and confirming that the Grand Jury did indeed indict the defendant for a felony by reason of the conviction of November 5, 1980 and not January 5, 1980 as originally alleged in the special information (see People v. Heaton, 59 A.D.2d 704, 398 N.Y.S.2d 177).   Examination of the Grand Jury minutes corroborated that the Grand Jury did base the indictment on the conviction of November 5, 1980 and therefore the court permitted the special information to be amended although not sanctioned by statute
                

CHALLENGE TO THE UNCONSTITUTIONALITY OF THE PRIOR CONVICTION

This presented the court with the most troublesome aspects of this case.

The defendant was charged, in addition to the attempted assault in the second degree, with two counts of violating section 265.02, subd. (1), which reads as follows:

" § 265.02 Criminal possession of a weapon in the third degree

A person is guilty of criminal possession of a weapon in the third degree when: (1) He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; ..."

Section 265.01, subdivisions one, two, three and five, set forth the various weapons, the possession of which, or certain weapons, which when possessed under certain circumstances, constitute the violation of criminal possession of a weapon and a class "A" misdemeanor. However, § 265.02 provides that where the defendant has been convicted of a prior crime such prior conviction then forms the predicate for elevating this crime from a misdemeanor level to felony status. In referring to a previous conviction of a crime as a basis for elevating the possession of a weapon charge from a misdemeanor level to a felony level, Penal Law § 265.02 does not specify whether the predicate crime must be one constitutionally obtained. Nor does the Criminal Procedure Law provide for a challenge to the special information which alleges the prior conviction to be relied on to elevate the current misdemeanor crime to felony status.

The defendant here was accused of possessing two knives during the alleged attempted assault. Because of his prior conviction of November 5, 1980, he was charged with two counts of criminal possession of a weapon as a felony, in addition to the felony count of attempted assault in the second degree. Thus, this court was placed in the position of having to determine whether an attack on the constitutionality of a defendant's prior conviction was permissible although there is no statutory authority therefor, and, if permissible, the method to be employed in making such challenge.

In People v. Cornish, 104 Misc.2d 72, 427 N.Y.S.2d 564 (1980), a defendant, charged with criminal possession of a weapon under subdivision one of section 265.02 of the Penal Law, moved to dismiss the indictment on the ground that the statute was void because it did not provide an opportunity to challenge the constitutionality of the previous conviction (p. 75, 427 N.Y.S.2d 564). The challenge in Cornish was directed solely to the constitutionality of the statute itself and the court therefore did not concern itself with whether the prior conviction would be subject to attack. It ruled the statute to be constitutional relying heavily on the decision of the Supreme Court of the In two subsequent New York cases, People v. Dorn, 105 Misc.2d 244, 431 N.Y.S.2d 974 (1980) and People v. Sirianni, 109 Misc.2d 781, 440 N.Y.S.2d 988 (1980), the defendants were each charged with driving while intoxicated as a felony based on prior intoxication convictions. In each case, the defendantsmoved to suppress the introduction into evidence of their prior convictions. Without discussing (1) whether an attack on the constitutionality of a prior conviction was permissible under the statute, or (2) the propriety of a motion to suppress as the vehicle to mount such challenge, both courts examined the constitutionality of the prior convictions and granted the motions to suppress (cf. People v. Bourdrieau, 107 Misc.2d 3, 433 N.Y.S.2d 377 (1980), where under similar circumstances the court denied, without prejudice to renewal, a motion to dismiss the indictment because of the insufficiency of the factual allegations in the moving papers). The common thread in these three cases, aside from the similarity of the fact patterns, is the heavy reliance by the respective courts on a decision of the Supreme Court of the United States in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) approximately two months after the Supreme Court's decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198, supra.

United States in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (which will be discussed in greater detail later on in this decision).

A comparison of Lewis v. United States, supra, with Baldasar v. Illinois, supra, becomes necessary, particularly in light of the observation made by Mr. Justice Powell in his dissenting opinion in Baldasar v. Illinois, supra, (n. 3 at p. 234, 100 S.Ct. n. 3 at p. 1589, the only reference by the Baldasar court to the Lewis decision)--"Today's decision is all the more puzzling in view of the Court's recent ruling in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 ... ... The...