People v. Morel

• Decision Date: 19 February 1993
• Citation: 596 N.Y.S.2d 325,157 Misc.2d 94
• Parties: The PEOPLE of the State of New York v. Pedro MOREL, Defendant.
• Court: New York City Court

Page 325

596 N.Y.S.2d 325

157 Misc.2d 94

The PEOPLE of the State of New York v. Pedro MOREL, Defendant.

Criminal Court of the City of New York Kings County.

Feb. 19, 1993.

Elyse Bohm, Brooklyn, for defendant.

Charles J. Hynes, Dist. Atty. by Asst. Dist. Atty. Jonathan Laskin, for the People.

WILLIAM GARNETT, Judge.

Can the prosecution file a superseding information which includes both new factual material and additional charges?

On November 9, 1992, the defendant was arrested for the alleged theft, possession and use of a stolen car and possession of an electronic stun gun which was found on the front floor of the automobile. Inexplicably, the defendant was only charged with possession of the stun gun. Penal Law § 265.01(1). No facts were pleaded which would have provided a factual predicate for any charges concerning the car.

On January 22, 1993, over four (4) months after the defendant's arraignment, but within the applicable speedy trial parameters, by virtue of excludable delays, the People served a "superseding information" which added new facts and charges. The allegation of the unlawful possession of the stun gun was reiterated but the prosecution added new factual allegations concerning the auto to justify the addition of charges of Petit Larceny, Criminal Possession of Stolen Property in the Fifth Degree and Unauthorized Use of a Vehicle in the Third Degree.

The defense immediately moved to dismiss the electronic stun gun charge as facially insufficient and to dismiss the remaining counts as an improper supersedure of the original accusatory instrument.

The prosecution avers that the new charges and facts are properly includable in the "superseding information" on authority of C.P.L. § 100.50(1).

In the absence of appellate guidance and authority, the courts have wrestled with the interplay of various sections of the Criminal Procedure Law which deal with superseding accusatory instruments and new charges. Sections 100.45(3), 100.50(2) and 170.65(2) circumscribe the prosecution's right to file further accusatory instruments and to add additional charges.

The Criminal Procedure Law

Sections 100.45(3), 100.50(1) and 100.50(2) permit prosecutorial action "before entry of a plea" or "commencement of a trial". Section 170.65(2) has no limitation as a defendant may not be prosecuted by a complaint unless he or she waives prosecution by information. C.P.L. § 170.65(3). Sections 100.50(1), 100.50(2) and 170.65(2) contemplate the filing of an information to replace an earlier accusatory instrument. Section 100.45(3) controls the addition of additional charges by amendment. Section 100.45(3) limits the prosecution's ability to add new charges by mandating that the additional charges be supported by the facts pleaded in the information which the prosecution seeks to amend. Thus, this section allows new charges but brooks no new facts.

Likewise, Section 100.50(2) permits the filing of a prosecutor's information "charging any offenses supported ... by the allegations of the factual part of the original information." Again, the prosecution may add charges but is constrained by the facts of the original pleading. This limitation is compelled by the less rigorous pleading requirements for a prosecutor's information. C.P.L. § 100.35.

Section 170.65(2) is more liberal in its approach to an information. This section allows the prosecution to add new charges and new facts subject to two (2) constraints. First, the superseding information must charge, at least, one offense based on facts pleaded in the complaint. Second, the additional charges must be in conformity with the rules of joinder. Thus, if the prosecution satisfies these two requirements, then it is free to add new charges supported by new factual material.

Finally, § 100.50(1), which has occasioned the most judicial debate, describes the effect of the filing of a superseding information. This section mirrors C.P.L. § 200.80 which deals with the impact of a superseding indictment. The Practice Commentaries note that § 100.50(1) was enacted to bring the procedure which attends the filing of a superseding information into conformity with the indictment procedure. (Preiser Practice Commentaries, McKinney's Cons Laws of N.Y., Book 11A, C.P.L. § 100.50, p. 299). On its face, this section does not limit the prosecution to the same charges or facts when filing a superseding information. The other sections previously discussed, all contain explicit language which delimits the prosecution on charges or facts. The absence of such plain and clear language in § 100.50(1) and the reason for this statute's enactment leads to the conclusion that § 100.50(1) is a mere procedural mechanism for the treatment of the counts of superseding informations and that, unlike other sections, this section has no substantive impact on the prosecution's right to add new facts and charges in a superseding information.

This conclusion is consistent with the framework established by these various sections and with the symmetry between indictments and informations sought to be achieved by the enactment of § 100.50(1).

Sections 100.45(3) and 100.50(2) are both crafted to allow the prosecution to refine charges based on the same body of operative fact. The prosecutor, subject to the statutes' limitations, is free to have the charged offenses supplemented or adjusted prior to the commencement of a trial or plea proceeding. Clearly, these sections do not apply to prosecutor's informations filed at the direction of the Grand Jury for the prosecution would not be permitted to add offenses which were not voted by the Grand Jury. See C.P.L. §§ 100.45(2); 200.70(2)(a). To achieve the same result, the prosecutor would have to resubmit to another Grand Jury. If a second prosecutor's information was obtained from a Grand Jury, any additional or deleted charges would be adjusted in compliance with C.P.L. § 100.50(1). Plainly, the prosecutor would not be limited in his or her factual presentation to a subsequent Grand Jury. People v. Cade, 74 N.Y.2d 410, 548 N.Y.S.2d 137, 547 N.E.2d 339 (1989). Often, prosecutors use the mechanism of resubmission to cure a perceived deficiency in the evidence presented to a Grand Jury and to add charges, which in their haste to satisfy the time requirements of C.P.L. §§ 180.80 or 170.70, were omitted from the initial indictment or prosecutor's information.

If the prosecutor's right to present new factual material in a superseding information were foreclosed by § 100.50(1), then there would be no need for § 100.50(1) inasmuch as the People, limited to the facts pleaded in the initial accusatory instrument, could achieve the addition of new charges by amendment pursuant to § 100.45(3) or by prosecutor's information pursuant to § 100.50(2). C.P.L. § 100.50(1) prescribes the handling of the counts of a superseding information or a prosecutor's information filed at the behest of a Grand Jury. This section does not limit the prosecutor as do the other sections.

Moreover, it would indeed be ironic that the prosecution would be more favorably positioned if it merely had a complaint in place rather than an information. For if the People simply had a complaint pending, then the less forbidding requirements of § 170.65(2) would apply. Should the prosecutor's hands be tied because he or she has diligently obtained a corroborating affidavit of a complainant and thereafter learned of additional facts and circumstances? Such a circumstance should not determine the prosecution's ability to plead additional facts and add charges based on those facts. The defendant is still protected by his right to a speedy trial and the rules of joinder. Section 170.65(2) demonstrates a legislative intent to permit the District Attorney to expand the scope of the prosecution, within certain limits, to new facts and charges. Having this right at the complaint stage, there is no persuasive argument to preclude the prosecution at a later stage. Otherwise, the District Attorney will have been barred by the happenstance that an information has been filed. Section 170.65(2) sets fair and reasonable limitations on the prosecution.

Finally, the conclusion is inescapable that the framework of the Criminal Procedure Law and the New York State Court of Appeals' decision in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987), have firmly established a fundamental symmetry between indictments and informations. See C.P.L. §§ 100.35, 100.40(1); 100.45(1), (2); 100.50(1), 170.50; 200.20; 200.40; 200.80. Whether an individual be charged with a felony by indictment or misdemeanor by information, each accusatory instrument should be subjected to the same procedural requirements that it be supported by "legally sufficient" evidence. Further, to the extent practicable, the procedural rules should likewise be consistent. This is definitely the case where, as by § 100.50(1), the legislature has clearly transplanted the procedural device contained in § 200.80 and made it applicable to superseding informations. If § 200.80 does not prohibit superseding indictments based on additional evidence presented to a second grand jury and the addition of new charges in the superseding indictment, why does the inclusion of this procedural device in article 100 of the C.P.L. necessarily connote a prohibition of additional facts and charges in superseding informations? The statutory structure, of which § 100.50(1) is a portion, does not explicitly or implicitly preclude such additions.

Case Law

As noted above, no appellate court has ruled on the parameters and procedural role of § 100.50(1). Thus, the body of case law concerning this statute is, at best, persuasive authority.

In People v. Twine, 121 Misc.2d 762, 768, 468 N.Y.S.2d 559 (Crim.Ct.N.Y.County 1983), the Court, unable to find any explicit authority in the Criminal Procedure Law for a superseding information which included new...