People v. Morning

• Citation: 102 Misc.2d 750,424 N.Y.S.2d 610
• Court: New York County Court
• Decision Date: 31 December 1979
• Parties: PEOPLE of the State of New York, v. Joseph MORNING, Defendant.

Page 610

424 N.Y.S.2d 610

102 Misc.2d 750

PEOPLE of the State of New York, v. Joseph MORNING, Defendant.

County Court, Suffolk County.

Dec. 31, 1979.

Patrick Henry, Dist. Atty., Suffolk County; T. Michael Conlon, Riverhead, of counsel.

John F. Middlemiss, Jr., Riverhead, for defendant; Edward Vitale, Riverhead, of counsel.

JOHN V. VAUGHN, Judge.

The defendant moves to dismiss this indictment charging him with driving while intoxicated as a felony upon the grounds that (a) the prosecution is barred by reason of a previous prosecution; (b) there is jurisdictional or legal impediment to a conviction on this charge; and (c) dismissal is required in the interest of justice.

The facts are undisputed. Defendant was initially charged with driving while intoxicated as a felony, which charge was reduced to driving while intoxicated as a misdemeanor in the Justice Court of the Town of Southampton. Subsequently, the charge was dismissed by the court for lack of a speedy trial pursuant to CPL 30.30. No appeal was taken from that dismissal and the time to appeal has expired. After the dismissal, but prior to the expiration of the felony speedy trial period, the defendant was indicted for driving while intoxicated as a felony based upon the same criminal act which had been the basis for the dismissed misdemeanor charge.

The court finds that the prosecution is not barred by double jeopardy or collateral estoppel and the motion to dismiss on that basis must be denied. The defendant has never been put in jeopardy by trial within the meaning of the statute (CPL 40.30) and no trial issue involved in the case had been adjudicated at the time of the presentation to the grand jury (People v. Morgan, 90 Misc.2d 416, 395 N.Y.S.2d 363).

The application to dismiss on the ground that there is a jurisdictional or legal impediment to conviction is also based upon the fact that the dismissal of the misdemeanor charge on speedy trial grounds is a bar to prosecution on this charge. The issue is whether the district attorney may evade the consequences of a dismissal for failure to prosecute by changing the grade of the offense and the forum in which it is brought.

Unlike CPL 210.20, subd. 4, pertaining to the dismissal of an indictment, there is no provision in CPL 170.30 barring a new prosecution upon the dismissal of an information. The draftsman of the Criminal Procedure Law did not discuss the omission (See Staff Comment to Proposed CPL 85.25-85.45 at 122-23) and the courts have held that under this statute the dismissal of an information does not prevent reinstatement of an information or even a new prosecution (Matter of Krum v. Hogan, 69 Misc.2d 656, 330 N.Y.S.2d 680; see People v. Ackrish, 92 Misc.2d 431, 400 N.Y.S.2d 684; see People v. Bell, 95 Misc.2d 360, 407 N.Y.S.2d 944). It follows that if a new information may be laid after the dismissal, there is no bar to a felony prosecution based upon the same act as long as the original dismissal was not on constitutional grounds (People v. Ackrish, supra). This result would follow the rule in this state that any restriction upon the power of the grand jury to indict must be clearly and expressly stated (People v. Ryback, 3 N.Y.2d 467, 168 N.Y.S.2d 945, 146 N.E.2d 680; People v. Stern, 3 N.Y.2d 658, 171 N.Y.S.2d 265, 148 N.E.2d 400).

It is true that in People v. Scerbo, 91 Misc.2d 97, 397 N.Y.S.2d 351, the court reached a different result. There, the defendants were charged in a second information with the same crimes that had previously been dismissed for "failure to prosecute". The court held that the prior dismissal barred the subsequent prosecution. It based that conclusion upon the fact that under the Code of Criminal Procedure (Code of Criminal Procedure § 673) a dismissal of a misdemeanor was a bar to any subsequent prosecution, and that there was nothing to indicate that the legislature intended to change the law when the CPL was enacted. The court did not cite Matter of Krum v. Hogan, supra, and its interpretation of the former code of Criminal Procedure may have been too broad (see People v. Bell, 95 Misc.2d 360, 365, 407 N.Y.S.2d 944, 947; People v. Hicks, 62 Misc.2d 79, 308 N.Y.S.2d 485). It is also not clear from the opinion as to whether the earlier dismissal for "failure to prosecute" was on a "constitutional" or a "calendar control" basis (see People v. Morgan, 90 Misc.2d 416, 395 N.Y.S.2d 363; People v. Ackrish, 92 Misc.2d 431, 400 N.Y.S.2d 684), and it is thus not possible to reconcile the cases upon that basis. In any event, this court feels that the reasoning in Matter of Krum v. Hogan is correct, and that the statute does not...