People v. Nizza
| Decision Date | 18 November 1977 |
| Citation | 92 Misc.2d 823,402 N.Y.S.2d 95 |
| Parties | The PEOPLE of the State of New York v. Sebastian NIZZA, Defendant. |
| Court | New York City Court |
Eugene Gold, Dist. Atty., Kings County (Jeffrey B. Shapiro, Kings County, Brooklyn, of counsel), for the People.
Carl J. Cifarelli, Legal Aid Society, Brooklyn, of counsel and Martin Erdmann, New York City, for defendant.
This is a motion to dismiss "in the interests of justice" (CPL, Secs. 170.30(1)(g) and 170.40) a prosecutor's information charging the defendant Sebastian Nizza with the misdemeanor of Leaving the Scene of an Accident (VTL, Sec. 600).
The accident giving rise to the charges herein occurred in Kings County on November 22, 1976. On the same day, the defendant was issued an appearance ticket by a police officer named Joseph Ciccone, who thereafter swore out a misdemeanor complaint on December 12, 1976. The accusatory portion of that instrument was essentially a hearsay statement attributed to one William Martinez. The relevant allegations ran along the lines that the defendant, while driving an automobile, had struck and injured a pedestrian named Robert Schweitzer seriously enough to require hospitalization, and that the defendant had left the scene without filing an accident report as required by law. Nizza was arraigned on December 12th, at which time a preliminary hearing date was scheduled.
That proceeding was twice adjourned due to the absence of the "complainant." However, it was conducted on January 28, 1977, with the result that the defendant was held for trial. The minutes of that proceeding not having been made part of the record on the instant motion, the identity of the prosecution witnesses at that time is presently unknown to the court. However, a discovery motion by the defense resulted in a disclosure by the prosecution that the latter had two "on scene" witnesses, namely, William Martinez and Tony Hernandez.
Additionally, the defense made a motion to suppress identification testimony, alleging that the defendant had been viewed in a constitutionally impermissible manner by two witnesses. This claim prompted the court to order a so-called Wade hearing. Endorsements on the court papers indicate that three adjournments of the Wade hearing were granted at the behest of the parties. More specifically, the first two were granted the defense; while the prosecution obtained the third adjournment. Following these postponements, the matter came on to be heard on March 30, 1977.
Initially, there was some discussion between the opposing attorneys and the court respecting the reasons the prosecution had sought the most recent adjournment, and then the court inquired as to whether the district attorney was then ready to proceed. Whereupon, the prosecutor responded that a police car had been sent to the homes of the witnesses Martinez and Hernandez, but those persons had not been at home. The prosecutor went on to remark, in essence, that Mr. Schweitzer who was still hospitalized would not be an identification witness. Then the following colloquy occurred:
(Counsel): Thank you very much, Your Honor.
(Court): Thank the D.A."
Whereupon, the presiding jurist endorsed the court papers with a stamp reading "Dismissed Motion A.D.A.," and he made handwritten notations to the effect that the concession by the prosecutor about his inability to proceed had been made because "neither witness appeared."
At some point following the dismissal, the district attorney presented this case to a grand jury, which body on or about May 27, 1977 directed that a prosecutor's information charging a violation of Section 600 of the Vehicle and Traffic Law be filed against the defendant herein. On June 10th, such an instrument was filed and attached to the original papers in this case. After restoration of the matter to the trial calendar, several adjournments were granted the parties so that they could brief the question of law presented by this motion.
Essentially, the defendant argues that the district attorney lacked the legal power to submit this matter to the grand jury following the dismissal of March 30th, his only remedy being, in the defendant's view, a petition addressed to the inherent powers of the court to restore the case to the calendar. Beyond that, the defendant accuses the prosecutor of acting in "bad faith" because of the presentation of this case to the grand jury without notice to the defense, and because of certain allegedly inaccurate statements made by that prosecutor to the court following the filing of the prosecutor's information. Conversely, the district attorney argues, in substance, that he had a legal right to proceed as he did, and he goes on to argue that the situation presented here is not of the "compelling" kind required to justify a dismissal "in the interests of justice."
Notably, the parties do not now attempt to define the court's action of March 30th. If the jurist in question merely exercised his calendar control function, the prosecution could certainly have sought to revitalize the prosecution by application to this court, as defendant presently acknowledges (See Matter of Krum v. Hogan, 69 Misc.2d 656, 330 N.Y.S.2d 680 (Sup.Ct.N.Y.Co.1972)). Moreover, it could have...
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People v. Jones
...appears to have been touched upon on the nisi prius level (cf. People v. Bell, 95 Misc.2d 360, 407 N.Y.S.2d 944; People v. Nizza, 92 Misc.2d 823, 402 N.Y.S.2d 95; People v. Morning, 102 Misc.2d 750, 424 N.Y.S.2d 610; People v. Chandler, 111 Misc.2d 654, 444 N.Y.S.2d 814). The fascinating qu......
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...400 N.Y.S.2d 684 [recognizing principle, but holding Criminal Court's dismissal was on "constitutional" grounds]; People v. Nizza, 92 Misc.2d 823, 825-826, 402 N.Y.S.2d 95; People v. Morgan, 90 Misc.2d 416, 417-418, 395 N.Y.S.2d 363, aff'd 72 A.D.2d 552, 420 N.Y.S.2d 1016). Several other lo......
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...abandonment of the proceedings by the District Attorney, People v. Morgan, 90 Misc.2d 416, 395 N.Y.S.2d 363 (1977). In People v. Nizza, 92 Misc.2d 823, 402 N.Y.S.2d 95 (Kings Cty. Criminal Ct. 1977), the Court exercised its inherent power to control its calendar when it dismissed a case bec......
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