People v. Peluso

• Decision Date: 20 June 2002
• Citation: 745 N.Y.S.2d 845,192 Misc.2d 33
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>EDWARD PELUSO, Defendant.
• Court: New York Criminal Court

192 Misc.2d 33

745 N.Y.S.2d 845

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.EDWARD PELUSO, Defendant.

June 20, 2002.

Legal Aid Society, Brooklyn (Michele Maxian and Patricia L. Ragone of counsel), for defendant.

Charles J. Hynes, District Attorney, Brooklyn (Lawrence LaBrew of counsel), for plaintiff.

OPINION OF THE COURT

WAYNE SAITTA, J.

The defendant, Edward Peluso, is charged with violation of Penal Law § 120.15, menacing in the third degree, and § 215.50 (3), criminal contempt in the second degree. The defendant moved to dismiss the accusatory instrument on grounds of violation of defendant's right to a speedy trial pursuant to Criminal Procedure Law § 30.30.

Facts

The defendant was arraigned September 8, 2001 and thereafter the case was adjourned to October 1, 2001 for conversion. On October 1, 2001, the People did not serve or file a corroborating affidavit from the complainant or proof of service of an order of protection against the defendant. Thus, they were unable to convert the accusatory instrument into an information and answered not ready for trial. The matter was adjourned until October 29, 2001.

On October 19, 2001, off calendar, the People filed and served, together with the corroborating affidavit of the complainant, Theresa Peluso, and a copy of an ex parte order of protection dated September 19, 2001. The corroborating affidavit effectively converted the menacing count; however, the criminal contempt charge remained unconverted because the complaint charged the defendant with violating the order of protection dated July 26, 2001.

On October 29, 2001, the People conceded that they had served and filed the incorrect order of protection. The People requested an adjournment for conversion and the matter was adjourned to November 27, 2001. At this juncture, the People were properly charged with 80 days for the time elapsed between September 9, 2001 (the day after the arraignment) and November 27, 2001 (the return date).

During the November 27, 2001 calendar call, the People did not have their file. The People were unable to answer ready for trial and did not convert or move to dismiss the contempt charge. The court adjourned the matter to December 17, 2001 and marked the adjournment as final against the People for CPL 30.30 purposes.

On December 3, 2001, off calendar, the People filed and served a "Statement of Partial Readiness for Trial" on the menacing count only. However, the People did not move to dismiss the criminal contempt charge, leaving a partially converted instrument before the court. It is uncontested that at this juncture the People were properly charged with at least six days additional for a total of 86 chargeable days.

On December 17, 2001, the defendant appeared by counsel. Defense counsel made an oral motion to dismiss the action pursuant to CPL 30.30. The People objected contending they were partially ready on the menacing count, and stated that they did not intend to dismiss the unconverted contempt charge. The court denied the defense counsel's oral motion with leave to renew the matter in writing. The matter was adjourned to February 13, 2002 for defendant's CPL 30.30 motion. At issue is whether the People were properly charged with an additional 14 days for the time elapsed between December 3, 2001 and December 17, 2001.

On February 13, 2002, the People finally moved to dismiss the unconverted criminal contempt charge and the matter was adjourned to April 8, 2002 pending the court's decision on defendant's CPL 30.30 motion.

The defendant moved to dismiss this action on the ground that the defendant was denied the right to a speedy trial pursuant to CPL 30.30. Defense counsel contends that the People should be charged for a total of 100 days since the People failed to either convert or dismiss the criminal contempt in the second degree charge within the speedy trial period applicable to the case. The defense argues that the People's statement for partial readiness dated December 3, 2001 was illusory because they were not ready for trial since the accusatory instrument contained an unconverted count and, thus, was jurisdictionally defective for trial purposes.

The People contend that they converted all the charges in the complaint into an information on October 19, 2001. They submit that filing Theresa Peluso's supporting deposition was sufficient to convert the accusatory instrument because the allegations in the complaint relating to defendant's knowledge of the order of protection were based on the deponent, Detective Cutrone's, personal knowledge. As such, there were no hearsay issues outstanding and the People were not required to file and serve a certified copy of the order of protection. In the alternative, the People argue that even if they were not ready on the contempt charge the People's "Statement of Partial Readiness for Trial" stopped the clock as to the menacing charge.

The issues are: (1) whether the People successfully converted the criminal contempt charge on October 19, 2001 without serving the order of protection, and (2) whether the People can announce partially ready for trial for the purposes of CPL 30.30 (1) (b) on a partially converted accusatory instrument without first curing the jurisdictional defects in the accusatory instrument by converting, dismissing or severing the unconverted charges. This court finds that the answer is no as to both issues.

Analysis

A. The People Failed to Properly Convert the Charge of Criminal Contempt

In a misdemeanor prosecution, the defendant has the statutory right to be prosecuted by a misdemeanor information absent a waiver by defendant. (People v Viken, 161 Misc 2d 217, 218 [1994].) A sufficient information, by definition, contains only nonhearsay allegations setting forth each element of the crimes charged. (CPL 100.40 [1] [c].) Here, the defendant was charged with a multicount accusatory instrument charging menacing and criminal contempt. It is uncontested that the People properly converted the menacing charge with the off-calendar filing and serving of Theresa Peluso's corroborating affidavit on October 19, 2001; however, the criminal contempt charge remained outstanding.

Generally, for an accusatory instrument charging criminal contempt in the second degree to constitute a sufficient information it must contain: (1) nonhearsay sworn factual allegations establishing, if true, that the defendant intentionally disobeyed the law mandate of the court, (2) a certified copy of the order in question, (3) proof of defendant's awareness of the order at the time that it was allegedly violated, and (4) factual allegations as to the manner it was disobeyed. (People v Bendter, 184 Misc 2d 374 [2000].) In People v Casey the Court of Appeals held that though it is better practice to file a certified copy of the order of protection, the issue of whether a copy of the order of protection is required depends on the facts of the case. (95 NY2d 354 [2000].)

In Casey, the defendant was charged with criminal contempt for violating an order of protection and the People never filed the certified copy of the order of protection. On appeal, the defense counsel argued that without the order of protection, the information was jurisdictionally defective under CPL 100.40 (1) (c) because the People failed to assert non-hearsay statements alleging that: (1) the order of protection was outstanding and in effect, and (2) the defendant had knowledge of the order. The Court stated that the accusatory instrument charging criminal contempt should: (1) give the defendant sufficient notice to prepare a defense, (2) be adequately detailed to prevent the defendant from being tried twice for the same offense, and (3) demonstrate firsthand knowledge that the order was granted, was in effect and was violated by the defendant. (Casey, supra at 357.)

The People rely on Casey to support their contention that the criminal contempt charge was converted on October 19, 2001. However, this court finds that the facts in Casey are clearly distinguishable from the instant case. In Casey, the record reflected that the complainant showed a certified copy of the order containing defendant's signature and acknowledgment of receipt of service to the detective. The defendant also admitted to the detective in their initial telephone conversation that he was served with the order. The Court found that the defendant's admission coupled with the detective's firsthand knowledge of the order and receipt of service thereof sufficiently demonstrated the defendant was aware of an effective order of protection.

Here, it has not been demonstrated that the defendant was aware of the order of protection. In the accusatory instrument the deponent, Detective Cutrone, affirms under the penalties of perjury that the defendant had knowledge of the order of protection because the order bears the defendant's signature and is endorsed "defendant present in court" and "defendant advised in court of issuance of order." Unlike Casey, there are no facts alleged as to Detective Cutrone's basis of knowledge of the existence of the order of protection, or that such order is endorsed in the manner that he alleges. Also, there is no indication in the record that the complainant showed the detective a certified copy of the order, that the detective looked in the police computer files to ascertain that an order was indeed in effect, or that the detective ever read the order.

More significantly, a review of the copy of the temporary order of protection, submitted by the People in opposition of this motion, reveals that the defendant did not sign the order of protection as Detective Cutrone affirmed. Though the order does indicate that the defendant was present in court, this court was unable to determine from the copy whether the defendant was advised in court that the order was issued, or of such order's terms. This undermines not only the veracity of Detective Cutrone's statements,...