People v. Machado

• Decision Date: 11 August 1999
• Citation: 698 N.Y.S.2d 416,182 Misc.2d 194
• Court: New York Criminal Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>CARLOS MACHADO, Defendant.

182 Misc.2d 194

698 N.Y.S.2d 416

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.CARLOS MACHADO, Defendant.

August 11, 1999.

John T. Yu, Bronx, for defendant.

Robert T. Johnson, District Attorney of Bronx County (Jennifer Calhoun of counsel), for plaintiff.

OPINION OF THE COURT

JOSEPH J. DAWSON, J.

CPL 140.45 requires a local criminal court to dismiss an accusatory instrument when it is facially insufficient (see, CPL 100.40) and when "the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face." (See, CPL 140.45.) Beyond restricting this dismissal power to cases involving warrantless arrests (see, CPL 140.45, citing CPL 140.20, 140.25, 140.40), the statute is silent regarding the procedural rules that govern a court's power to inspect an accusatory instrument for facial sufficiency. Specifically, the provision does not state whether, and to what extent, the People are entitled to demand a written motion to dismiss and a reasonable opportunity to respond in writing before the court may exercise its power under CPL 140.45, and there are no reported cases that resolve this issue.

In this case, the court has concluded that, regardless of whether any motion to dismiss has been made, a local criminal court is required to inspect an accusatory instrument for facial sufficiency during a defendant's arraignment following an arrest without a warrant. Moreover, because a local criminal court must inspect the instrument promptly after a warrantless arrest and exercise its dismissal power under CPL 140.45 in the event that the pleading is defective, the People are not entitled to demand motion papers or an opportunity to prepare a written response. They may present only such facts or evidence as may be available to them at the arraignment.

FACTUAL BACKGROUND

Defendants Carlos Machado and Manny Garcia were arrested without a warrant on July 21, 1999. Both defendants were charged in a misdemeanor complaint with two counts of criminal sale of marihuana in the fourth degree, and four counts of criminal possession of marihuana in the fifth degree.

The complaint alleged that an undercover police officer approached defendant Machado and stated, "You got Nicks." According to the complaint, defendant Machado responded, "Na man, not here, it's hot * * * Go see Omar in the basketball court." At that point, the complaint continues, the undercover officer approached Garcia, who asked whether the officer was "looking for smoke." The undercover officer gave an affirmative response, and stated, "Let me get one." The officer handed Garcia $5 in prerecorded currency; Garcia walked to a garbage can, removed a "small ziplock bag containing a green, dried, leafy substance," and then gave the bag to the officer. The complaint alleges that, based upon his or her training and experience, the undercover officer believed that the bag contained marihuana.

The complaint also alleges that both defendant Machado and Garcia were "in custody and control of eleven [more] bags containing a green, dried, leafy substance with a distinctive odor in that said bags were located on the ground next to * * * Garcia's feet." With respect to the nature of the substance, the complaint asserted, among other things, that a field test on 1 of the 11 bags yielded results consistent with the presence of marihuana.

At the arraignment on this accusatory instrument, defendant Machado's counsel urged the court to dismiss the accusatory instrument on the ground that it was facially insufficient. The People responded by asserting that the relief demanded by defendant Machado is available only after a written motion to dismiss has been made.

The court asked the People whether there was any available evidence tending to connect defendant Machado to codefendant Garcia or tending to show that codefendant Garcia could somehow be connected to "Omar" or "the basketball court." After being told that the People's file did not contain such information, the court stated that it would call the case again at a later point in the evening to give the People a chance to determine whether any additional evidence was available. When the case was recalled, Garcia entered a plea of guilty, and the People asserted that no further evidence was available regarding defendant Machado. The court thereupon dismissed the accusatory instrument against Machado pursuant to CPL 140.45, and stayed sealing to give the People an opportunity to move for reconsideration. Set forth below are the reasons for the court's decision.

DISCUSSION

The accusatory instrument in this case plainly provided probable cause to support the arrest of Garcia. With respect to defendant Machado, however, there was only one factual assertion concerning his conduct. Specifically, defendant Machado's response to the request for "nicks" arguably amounted to a statement that he did not have any marihuana, but that the officer might obtain the substance by seeing "Omar in the basketball court." Without some support for the proposition that Garcia was, in fact, known as "Omar," or that the sale occurred "in the basketball court," there was no factual basis from which to infer that the undercover officer's later purchase of marihuana, much less the later recovery of contraband from the ground near Garcia's feet, had anything to do with defendant Machado. From all that appeared in this accusatory instrument, the undercover officer's purchase from Garcia may have been fortuitous, having nothing to do with defendant Machado's suggestion to "see Omar in the basketball court." Under the circumstances, the accusatory instrument did not provide reasonable cause to conclude that defendant Machado participated in the sale or Garcia's possession of the remaining bags. Since the instrument would not have supported the issuance of a warrant for the arrest of defendant Machado, it was facially insufficient. (Cf., People v Dumas, 68 NY2d 729, 731 [1986] [a "misdemeanor complaint is designed to provide the court with sufficient facts * * * to determine whether the defendant should be held for further action," and should be evaluated in light of the fact that, standing alone, it "may serve as the basis for issuing an arrest warrant"].)

The question remains, however, whether the court was authorized to dismiss the accusatory instrument against defendant Machado at the arraignment, or whether the court should have adjourned the case until such time as a written motion to dismiss was served and opposition papers were filed. Of course, the People ordinarily are entitled to demand that motions to dismiss on sufficiency grounds be "made in writing and upon reasonable notice" to them. (See, CPL 210.45 [1]; 170.30 [1] [a]; 170.35 [1] [a]; 170.45; Matter of Duckman, 92 NY2d 141, 146 [1998].) If the court possesses authority to inspect an accusatory instrument and dismiss it without the need for a prior written motion in certain circumstances, that authority must be set forth in a statute.

The New York State Legislature has provided a mechanism to permit a local criminal court to ensure that a defendant is not held on a facially insufficient accusatory instrument following a warrantless arrest. (See, CPL 100.40, 140.45; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 140.45, at 568.) CPL 100.40 (1) (b) provides that an instrument is sufficient when, inter alia, "[t]he allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged." CPL 140.45, in turn, provides that a court must "dismiss [the] accusatory instrument and discharge the defendant" when an instrument is not sufficient under CPL 100.40, "and * * * the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face." Hence, if a local criminal court finds that the pleading and the available facts do not establish reasonable cause, it has no choice but to dismiss following a warrantless arrest.^[1]

Notably, the plain language of CPL 140.45 does not limit this dismissal power to cases in which the court is inclined to set bail or otherwise impose restrictions on a defendant's liberty. Since the statute makes no distinction between situations in which a court will set bail and those in which it will order release following arraignment, any requirement that dismissal under CPL 140.45 be preceded by a written motion would effectively delay the release of some defendants despite the absence of any finding by a Judge that the accusatory instrument establishes reasonable cause to believe that the accused has committed an offense that has been charged.

Indeed, the statutory provisions governing motion practice in the local criminal courts necessarily embody periods of delay. CPL 170.30 provides that, "[a]fter arraignment * * * the local criminal court may, upon motion of the defendant, dismiss such instrument" for facial insufficiency. (CPL 170.30 [1]; 170.35 [1] [a].) The defendant typically must make the motion within 45 days after the arraignment. (See, CPL 170.30 [2]; 255.20 [1].) With respect to the procedures that govern the "making, consideration and disposition" of motions to dismiss these accusatory instruments, the rules set forth in CPL 210.45 are applicable. (See, CPL 170.45.) CPL 210.45 (1) requires that a motion to dismiss be in writing on "reasonable notice" to the People. Presumably, notice of eight days would be regarded as reasonable if the defendant's papers are served by personal delivery to the District Attorney's Office, although that period can be abbreviated if the motion is made by order to show cause. (See, CPLR 2214 [b], [d].) In either case, the People are entitled to submit written opposition...