People v. Laspina
| Citation | 135 Misc.2d 422,515 N.Y.S.2d 694 |
| Decision Date | 10 April 1987 |
| Docket Number | JY-1 |
| Parties | The PEOPLE of the State of New York v. Fernando LASPINA and Esteban Gonzales, Defendants |
| Court | New York City Court |
Mario Merola, Dist. Atty., Bronx County, Bronx by Marie A. Corliss, Asst. Dist. Atty., for People.
Caesar D. Cirigliano, New York Legal Aid Soc., Bronx by Ralph H. Popkin, for defendant.
Miano & Penichet, White Plains by Iran F. Harris, for defendant Gonzales.
The People have moved for an order pursuant to C.P.L. 40.30(4) "restoring the above-entitled docket to the court's calendar and reinstating the proceedings and previous court decisions made thereon as existed on December 9, 1986, immediately prior to the commencement of trial." In making its determination the court has relied on the following papers which were submitted on the motion:
(1) Notice of Motion, dated Dec. 19, 1986; Corliss Affirmation, dated Dec. 22, 1986, and exhibits annexed thereto, in support of the motion;
(2) Harris Affirmation in opposition, dated February 27, 1987;
(3) Popkin Affirmation in opposition, dated February 27, 1987;
(4) Corliss Affirmation in reply, unsigned and undated, submitted March 13, 1987, labelled "Supplemental Affirmation and Reply to Defendant's Affirmation in Opposition";
(5) Harris Surreply Affirmation, dated March 23, 1987.
This decision examines the consequences of failing to corroborate properly a misdemeanor complaint when that defect is discovered during trial and more than ninety days after the commencement of the criminal action.
On August 1, 1985 the defendants were arrested and charged with acting in concert On September 23, 1985 the People reduced the felony assault charge to misdemeanor assault (P.L. § 120.00) and filed what had appeared on its face to be a valid supporting affidavit sworn to by the victim of the assault, Carlos Torres. In that affidavit Mr. Torres stated that he had read the accusatory instrument and swore that the facts which are alleged therein to have been furnished by him were, upon his personal knowledge, true. The complaint alleged that the defendants had beaten Mr. Torres with a baseball bat. The complaint, together with this apparent supporting, non-hearsay deposition, was deemed an information.
to commit the crimes of assault in the second degree (P.L. § 120.05), assault in the third degree (P.L. § 120.00[1] ), and criminal possession of a weapon in the fourth degree (P.L. § 265.01[2] ). They were arraigned on those charges on August 2, 1985.
More than fourteen months later, on December 8, 1986, the day trial was to commence, the People filed a prosecutor's information.
Mr. Torres, during his trial testimony, clearly and emphatically stated that he did not see either defendant strike him--but rather, that he had been told by a third party that it was the defendants who were his attackers. That testimony was in direct contradiction to the information he had supplied in his "supporting" affidavit to the complaint.
The court granted the motion made by both defendants to dismiss the complainant based on their argument that the accusatory instrument had not properly been converted to an information *. In granting the motion, the court gave leave to the People to move to reinstate this proceeding if a valid corroborating affidavit could be supplied. The court also gave leave to defendants to raise speedy trial objections in the event such a motion to restore was made. See People v. Lawrence, 64 N.Y.2d 200, 485 N.Y.S.2d 233, 474 N.E.2d 593 (1984); see also Corliss Affirmation, dated December 22, 1986, Paragraph 9, supra.
The People now have made such a motion offering what they state is a proper corroborating affidavit. I note, in passing, that the proffered affidavit is not verified; this decision, however, will not be based on that technical defect.
In opposition to the motion both defendants argue that, if granted, their statutory speedy trial rights pursuant to C.P.L. 170.30, subd. [1], par. (e), would be violated as well as their rights pursuant to C.P.L. 40.20 to not be placed twice in jeopardy for the same offense. As to the double jeopardy issue, the People counter with reliance on People v. Key, 45 N.Y.2d 111, 117, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978). See Corliss Supplemental Affirmation, Paragraph 11. As to the speedy trial issue, the People fail to offer any analysis of possible excusable delay and in lieu thereof argue:
See Corliss Supplemental Affirmation, second Paragraphs 7-8. (The affirmation contains two paragraphs numbered "7" and two paragraphs numbered "8".)
In this connection it must be noted that the People candidly concede "7. After Carlos Torre's testimony, defense counsels, on behalf of both defendants, made an oral application to dismiss the accusatory instrument as defective. Specifically, the defense argued that the original complaint was never properly deemed an information because it was never supplemented by a non-hearsay supporting deposition.
See Coliss Affirmation, date December 22, 1986.
Under New York law, if an accusatory instrument is "so radically defective that it would not support a judgement of conviction, jeopardy never attaches under the instrument and retrial upon correction of the defect is not barred." People ex rel. Zakrzewski v. Mancusi, 22 N.Y.2d 400, 403, 292 N.Y.S.2d 892, 239 N.E.2d 638 (1968).
Indeed, reprosecution is permitted whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence. This rule applies even if the dismissal occurs after jeopardy has attached. People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978). Thus reprosecution has been permitted where an accusatory instrument was dismissed for legal insufficiency after a trial had begun. See Matter of Bishop v. Supreme Court, 14 N.Y.2d 321, 251 N.Y.S.2d 466, 200 N.E.2d 450 (1964), remittitur amd. 14 N.Y.2d 959, 253 N.Y.S.2d 996, 202 N.E.2d 377 (1964), cert. den. 380 U.S. 909, 85 S.Ct. 892, 13 L.Ed.2d 796 (1965); People ex rel. North v. Skinner, 280 App.Div. 611, 116 N.Y.S.2d 576 (4th Dept.1952) affd. 305 N.Y. 711, 112 N.E.2d 783 (1953).
Accordingly, in order to determine whether the principle of double jeopardy bars reprosecution in the instant case it is necessary to determine if the document before the court at the time of the trial would have supported a judgement of conviction. Did the conceded failure to supply a valid corroborating affidavit constitute simply a formalistic error which could be corrected even at trial or was it a substantive, jurisdictional flaw?
Section 170.65(1) of the Criminal Procedure Law provides in pertinent part:
(Emphasis supplied.)
The statute is mandatory. A defendant accused of a misdemeanor has an absolute right to be tried upon an information. This requirement is so significant that should the People fail to replace a misdemeanor complaint with an information for a defendant who at the time of his arraignment was confined in custody for a period of more than five days (not including Sunday), that defendant must, upon his application, be released on his own recognizance. C.P.L. § 170.70.
Section 100.40(1) of the Criminal Procedure Law, sets forth the requirements for a sufficient information. It requires, inter alia, that:
"... (c) Non-hearsay allegations of the factual part of the information and/or of any supporting deposition establish, if true, every element of the offense charged and the defendant's commission thereof." (Emphasis supplied.)
This statutory mandate protects an accused from baseless prosecution upon an accusatory instrument that is based on hearsay alone; it requires that the instrument be supported by statements from accusers who have first-hand knowledge. People v. Jeffries, 19 N.Y.2d 564, 566-567, 281 N.Y.S.2d 67, 227 N.E.2d 870 (1967) citing People The requirement of prosecution by information clearly is jurisdictional in nature and not merely a matter of form; a verdict obtained in a trial that was not commenced upon an information must be reversed. People v. Weinberg, supra; People v. Groos, 53 Misc.2d 185, 278 N.Y.S.2d 468 (Dist.Ct., Suffolk County, 1967). Even where, as here, the trial is commenced with a facially sufficient accusatory instrument, if the trial should reveal that the accusation is based on hearsay, the case may not proceed. People v. Gambella, 56 Misc.2d 928, 290 N.Y.S.2d 684 (Dist.Ct., Nassau County, 1968). That the corroborating affidavit is offered while the trial is in progress will not cure the defect. People v. Haverty, 21 Misc.2d 198, 191 N.Y.S.2d 34 (County Court, Suffolk County, 1959); People v. Whetson, 135 Misc.2d 1, 513 N.Y.S.2d 910 (Crim.Ct., N.Y. County, 1987); cf., People v. Treman, 28 Misc.2d 379, 214 N.Y.S.2d 117 (County Court, Tompkins County, 1961)
ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330 (1906); People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877 (1958). It is a rule that...
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