People v. Nizza

• Decision Date: 18 May 1978
• Citation: 95 Misc.2d 74,407 N.Y.S.2d 388
• Parties: The PEOPLE of the State of New York v. Sebastian NIZZA, Defendant.
• Court: New York City Court

Page 388

407 N.Y.S.2d 388

95 Misc.2d 74

The PEOPLE of the State of New York v. Sebastian NIZZA, Defendant.

Criminal Court of the City of New York, Kings County.

May 18, 1978.

Eugene Gold, Dist. Atty., by Jeffrey B. Shapiro, Brooklyn, for the people.

Martin Erdmann, Legal Aid Society, New York City, by Carl J. Cifarelli, Brooklyn, for defendant.

OPINION

DANIEL J. SULLIVAN, Judge.

This is a motion by the defendant Nizza to dismiss a prosecutor's information charging him with the class B misdemeanor of Leaving the Scene of An Accident (VTL, § 600) on the grounds that he has been deprived of his right to a speedy trial. The application is predicated on statutory law fixing arbitrary time periods measured from the commencement of the criminal action in which the prosecution must try an accused or suffer dismissal of the case (CPL, §§ 170.30, subd. 1(e) and (30.30)). Thus, the defendant has opted not to make any "speedy trial" claims under the federal or state constitutions (see People v. Singer, 44 N.Y.2d 241, 251-255, 405 N.Y.S.2d 17, 23-26, 376 N.E.2d 179, 184-187 (1978)).

As it happens, the resolution of this motion will require an analysis of the impact, if any, the pertinent statutory scheme has upon this court's discretionary power to remove from its calendar previously adjourned cases which merit no further postponements. That is because the prosecution has revived the instant case after it had earlier been dismissed by this court "in the exercise of the calendar control function," and because the prosecution took more time to obtain the prosecutor's information by grand jury direction than the sixty days prescribed by the Criminal Procedure Law for bringing this accused to trial on the first accusatory instrument. In Nizza's view, that dilatoriness entitles him to a dismissal pursuant to statute (CPL 30.30, subd. 1(c)). For the reasons assigned herein below, that contention is rejected and the motion is denied.

While we deal now with the lowest level of criminality, the fact of the matter is that the victim of the automobile accident giving rise to the charge one Robert Schweitzer has apparently been disabled for life. Seemingly the critical issue herein is one of identification of the offender, upon which subject the prosecution hopes to offer the testimony of alleged eyewitnesses named William Martinez and Tony Hernandez. But, when these two persons were absent on a fourth date scheduled for a pretrial identification hearing, the presiding jurist dismissed the misdemeanor complaint "on the motion of the D.A.," having first requested and received the prosecutor's consent to the proposed judicial action. While not now critical, it is interesting to note that, prior to voicing consent "regretfully," the assistant district attorney outlined the efforts he had made to bring Martinez and Hernandez to court that day (I. e., sending a police car to the homes of these men who apparently were working). Had an attempt been made by the prosecutor to have the court find the presence of "exceptional circumstances" within the meaning of the applicable statute (CPL, § 30.30, subd. 4(g)), a postponement might well have been granted. ¹ Moreover, the prosecution's time to bring Nizza to trial had not been exhausted at the time of the dismissal.

Be that as it may, the district attorney subsequently presented this matter to a grand jury, which body thereafter directed him to file a prosecutor's information charging the same offense as had been charged in the misdemeanor complaint. Incidentally, that prosecutor's information carries both a grand jury identification number and the original Criminal Court docket number. Indeed, the second accusatory instrument is physically affixed to the same papers that were before this court at the time the case was dismissed. In any event, the grand jury's action triggered an earlier jurisdictional attack on the prosecutor's information. At that time, this court denied a motion to dismiss (People v. Nizza, 92 Misc.2d 823, 402 N.Y.S.2d 95 (Criminal Court of the City of New York, Kings Co., 1977)). More specifically, it was held that the dismissal of the original misdemeanor complaint had been an exercise of the "calendar control" function (I. e., as distinguished from a ruling predicated upon any grounds to be found in the Criminal Procedure Law) which legally could not operate as a bar to revival of the case (See People v. DeRosa, 42 N.Y.2d 872, 397 N.Y.S.2d 780, 366 N.E.2d 868 (1977)); People ex rel. Hirschberg v. Orange Co. Ct., 271 N.Y. 151, 155, 2 N.E.2d 521, 523 (1936); People v. Glen, 173 N.Y. 395, 399-400, 66 N.E. 112, 114 (1903); People v. Jayson, 31 A.D.2d 551, 295 N.Y.S.2d 378 (2d Dept. 1968); Matter of McDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4 (2d Dept. 1947)). Obviously, that determination inspired the present motion.

Prefatorily it may be observed that Nizza is not claiming that his statutory rights were violated by delays occurring while his case was actually calendared in this court. ² Indeed judicial consideration of defense motions made at various times has occasioned most of the delay herein (CPL, § 30.30, subd. 4(a)). Excluding the time when motions were Sub judice, and excluding the period between the "dismissal" and the grand jury's action, the amount of delay chargeable to the prosecution falls so far short of the sixty-day period allowable here that mathematical computations are unnecessary (Id., § 30.30, subd. 2(c)).

The primary thrust of Nizza's argument is an assertion that statutory law decrees that the prosecution's time to bring an accused to trial commences with the filing of the first accusatory instrument (Id., § 100.05), and that more than sixty days elapsed between the time of the "dismissal" of the misdemeanor complaint and the filing of the prosecutor's information. In that connection, it may be observed that, while Section 30.30, subd. 5(d), of the Criminal Procedure Law deals expressly with "felony-complaints-converted-to-informations" problems by establishing a "six-months" rule (see also, People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1976); People v. Kent, 87 Misc.2d 69, 384 N.Y.S.2d 936 (Co. Ct., Suffolk Co., 1976)), it is silent respecting time frames for the situation involved herein.

Looking for some guidance from the case law, this court has found a decision on each side of the controversy, neither of which is deemed by it to be persuasive.

Favoring Nizza is a decision reflecting an interesting approach to a not totally parallel situation (People v. Lupo, 74 Misc.2d 679, 345 N.Y.S.2d 348 (Criminal Court of the City of New York, N.Y. Co., 1973)). In Lupo, the court held that, from inception of the case, the charge should have been a misdemeanor, albeit the prosecution had been initiated by a felony complaint later converted to a prosecutor's information by virtue of a grand jury direction. Despite the "good faith" error by all concerned, the court deemed the already mentioned "six-months" rule unavailable to the state, and it then dismissed the case, applying the "ninety-day" rule for a class A misdemeanor and calculating the time period from the day of arraignment on the felony complaint. Such an approach militates against the legislative intendment, at least in this court's view. Over and above that consideration, efforts to implement that approach in similar situations would embroil judicial tribunals in totally unwarranted speculations about whether the law and facts justified commencements of criminal prosecutions by felony complaints (see People v. Kaplowitz, 74 Misc.2d 66, 344 N.Y.S.2d 129, 132-33 (Nassau Co.Ct., 1973)). In Lupo, furthermore, the error was patent and readily correctable were it not for oversight on the part of all concerned a circumstance which induced the court to base its determination on the alternate grounds of the "interests of justice." Despite these criticisms, however, this court is willing to accept for present purposes the notion that the time periods specified in Section 30.30 may not be extended because of some "good faith" error by the prosecution.

Turning to the opposing authority previously noted, it does indeed militate against Nizza's position (People v. Vincelli et al., 91 Misc.2d 635, 398 N.Y.S.2d 395 (Town Ct., Monroe Co., 1977)). But the opinion in question dealing with an information filed after an earlier information had been dismissed does not justify the result reached therein on the basis of statutory provisions.

Turning to the statutes, it is true, as the defendant Nizza argues, that Section 100.05 of the Criminal Procedure Law a provision predating Section 30.30 and addressing itself essentially to concerns under the statute of limitations indicates that, when more than one accusatory instrument is filed in a criminal action, such action commences when the first instrument is filed. But, the Criminal Procedure Law, in effect, qualifies that notion by providing, in its definition of a "criminal action," that the action ". . . includes the filing of all further accusatory instruments directly derived from the initial one". (CPL, § 1.20 subd. 16(b)). Put another way, in order to be part of a single criminal action, a second accusatory instrument must void and supersede the initial accusatory instrument by virtue of superior power provided for in law (see People v. Schildhaus, 15 Misc.2d 377, 379, 180 N.Y.S.2d 377, 379 (Ct. Special Sessions, 1958)). As a matter of fact, the law even tolls the statute of limitations to permit supersession of an accusatory instrument at judicial behest (CPL, § 30.10, subd. 4(b)). In any event, when the prosecutor's information herein was filed, no earlier accusatory instrument was extant. Thus the present accusatory instrument is not in law a superseding one, its physical affixation to the first accusatory instrument notwithstanding. Accordingly, the time for prosecution for purposes of this motion is measured...