People v. Richberg

• Decision Date: 09 October 1984
• Parties: The PEOPLE of the State of New York v. Curtis RICHBERG, Defendant.
• Court: New York City Court

Page 237

481 N.Y.S.2d 237

125 Misc.2d 975

The PEOPLE of the State of New York v. Curtis RICHBERG, Defendant.

Criminal Court of the City of New York,

New York County, Part AP1.

Oct. 9, 1984.

Robert M. Morgenthau, Dist. Atty., New York County (Victoria A. Stewart, Brooklyn, of counsel), for the People.

Caesar Cirigliano, Legal Aid Soc., New York City (Judd Ryan, New York City, of counsel), for defendant.

LESLIE CROCKER SNYDER, Judge.

The defendant is charged with operating a motor vehicle while intoxicated. He has moved for an order dismissing this criminal action, claiming to have been denied his right to a speedy trial. (Criminal Procedure Law 30.30.) This motion requires the court to consider a novel interaction between CPL 30.30 and provisions of the Vehicle and Traffic Law (VTL), raising a question of apparent first impression. In light of this state's continuing and commendable efforts to remove drunk drivers from our streets and highways, this issue is certain to be raised again.

FACTS

The defendant, Curtis Richberg, was arrested on October 27, 1983 in New York County where it is alleged that he operated a motor vehicle while intoxicated. The defendant was given an Appearance Ticket (DAT) with a return date of November 17, 1983.

On November 17, 1983 the defendant appeared in court in response to the DAT; at that time he was arraigned on a criminal complaint. The accusatory section of the criminal complaint listed two charges: driving while intoxicated, VTL § 1192, subdivision 2; and consumption of alcoholic beverages in a motor vehicle, VTL § 1227.

The factual portion of the criminal complaint stated the following:

Deponent states that he observed the defendant operating a 1981 Chevrolet, NY Reg. 8593AJH, at a DWI safety check point in an intoxicated condition, in that defendant's breath smelled of alcohol, defendant had watery bloodshot eyes, defendant was unsteady on his feet and there was an open case of Budweiser beer in the car.

Deponent further states that he is informed by P.O. Pniewski, # 31543, Highway I, that informant administered to defendant a chemical test and that test indicated that defendant's blood alcohol content was .16 of one percent.

The complaint had been sworn to and signed by the deponent, a police officer, on November 1, 1983, prior to the defendant's first court appearance.

When the defendant appeared on November 17, 1983, the arraignment date, a motion schedule was established. The matter was adjourned to January 5, 1984 for a decision on the motions.

The motions were decided on January 5, 1984, at which time suppression hearings were ordered. The case was adjourned to January 16, 1984.

On January 16, 1984 the defendant failed to appear and a warrant was ordered and stayed to January 31, 1984. On January 31, 1984 both sides appeared and the matter was adjourned, on consent, to February 10, 1984.

On February 10, 1984 both sides answered ready. The police officers were in court. The officer who administered the breathalyzer test, Police Officer Pniewski, signed a corroborating affidavit which was filed with the court.

From affidavits filed with the court it appears that a court officer informed a Trial Preparation Assistant (TPA) of the District Attorney's Office that no jury parts were available. The TPA passed this information on to the Assistant District Attorney in the calendar part who released the officers to telephone alerts. The Assistant failed to inform the court of her intention to release the officers.

As the facts developed, there was a jury part available to take the suppression hearings. The Assistant's efforts to activate the telephone alerts failed. Once it became clear that the police officers would not return to court, this matter was adjourned to March 6, 1984.

On March 6, 1984 the case was adjourned to March 16, 1984 for hearings and decision on the defendant's speedy trial motion. This matter has been on numerous times since March 6, 1984, primarily awaiting minutes of prior proceedings and, ultimately, this decision.

CONCLUSIONS OF LAW

PART I--VTL § 1192, SUBDIVISION 2

The defendant is accused of driving while intoxicated which is an A misdemeanor. (VTL § 1192 The People must be ready for trial within 90 days when a defendant is accused of an A misdemeanor. (CPL 30.30, subd. 1, par. [b].)

When a defendant is served with a DAT, his statutory right to a speedy trial does not attach until the first time he appears in court in response to the DAT. (People v. Paige, 124 Misc.2d 118, 475 N.Y.S.2d 762 CPL 30.30, subd. 5, par. In the action now before the court, the defendant's right to a speedy trial, as guaranteed by CPL 30.30, attached on November 17, 1983, the date the defendant appeared for arraignment in response to the DAT.

This motion to dismiss was made on March 6, 1984, the 110th day of this proceeding. The defendant has made a prima facie showing of undue delay of more than 90 days. (People v. Mouliere, 118 Misc.2d 999, 462 N.Y.S.2d 749 The District Attorney must come forward with an explanation of why he is not chargeable with delay in excess of 90 days. (CPL 170.45; CPL 210.45, subd. 7; People v. Rivera, 72 A.D.2d 922, 422 N.Y.S.2d 211 People v. Del Valle, 63 A.D.2d 830, 406 N.Y.S.2d 642 [4th Dept., 1978].)

The court will determine this motion based on the court record, minutes of prior appearances and the moving papers. No hearing will be held as the papers raise no factual dispute. (CPL 170.45; CPL 210.45, subd. 4, par. [c].)

On November 17, 1983, the defendant was arraigned on a criminal complaint charging a violation of VTL § 1192, subdivision 2, driving with .10 of one per centum or more by weight of alcohol in his blood. A criminal complaint is a form of accusatory instrument which is sufficient to commence a criminal proceeding but is jurisdictionally insufficient to take a matter to trial unless the right to prosecution by information is waived. (CPL 100.10, subd. 4; People v. Connor, 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468 N.E.2d 35 People v. Weinberg, 34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434 People v. Pinto, 88 Misc.2d 303, 387 N.Y.S.2d 385 [City Ct., Mt. Vernon, 1976].)

An information is an accusatory instrument sufficient to commence and to prosecute a criminal action. (CPL 100.10, subd. 1; People v. Scott, 3 N.Y.2d 148, 164 N.Y.S.2d 707, 143 N.E.2d 901 People v. Mosier, 10 Misc.2d 815, 173 N.Y.S.2d 217 When a criminal action, as here, commences on a misdemeanor complaint, that complaint must be converted to a jurisdictionally sufficient information before the People can answer ready for trial. (People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305, affd. 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 To convert a complaint to a jurisdictionally sufficient information, the People are required to file a corroborating affidavit, thereby eliminating the hearsay nature of the complaint. (People v. Redding, 109 Misc.2d 487, 440 N.Y.S.2d 512 [Crim.Ct., N.Y. County, 1981].)

In the original criminal complaint in this matter, the factual allegation supporting the charge of VTL § 1192, subdivision 2 was the result of the breathalyzer test. The facts were given to the deponent by another officer and therefore were hearsay. A corroborating affidavit was needed to convert the complaint to an information as to the VTL § 1192, subdivision 2 charge. This corroborating affidavit was filed on February 10, 1984, the 85th day of this proceeding.

The People cannot answer ready for trial until they have converted a misdemeanor complaint into a jurisdictionally sufficient information (People v. Colon, supra ). None of the exclusions listed under CPL 30.30, subdivision 4 will apply until conversion has been completed (People v. Arturo, 122 Misc.2d 1058, 472 N.Y.S.2d 998 In light of the above, all the time (85 days) from the Conversion to an information does not fulfill the People's obligation under CPL 30.30. The People are required to answer ready for trial in open court. (People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345 People v. O'Neal, 99 A.D.2d 844, 472 N.Y.S.2d 449 The People attempted to answer ready for trial on February 10, 1984. This court will not accept the People's statement of readiness without further inquiry. (People v. Filim, N.Y.L.J., Aug. 23, 1984, p. 12, col. 2, App.Term, 2d Dept.) On the day the People answered ready their witnesses could not be produced in court when a part was available to hear this matter. The court finds that the People's attempt to answer ready for trial on February 10, 1984 was ineffective.

commencement of the action on November 17, 1983 until the corroborating affidavit was filed on February 10, 1984, is chargeable to the People.

More than 110 days of chargeable time have elapsed since the defendant's right to a speedy trial attached on November 17, 1983. Since the People failed to satisfy their obligation under CPL 30.30 by answering ready in a timely manner, this court must dismiss the charge of driving while intoxicated under VTL § 1192, subdivision 2.

PART II--VTL § 1196

The dismissal of the VTL § 1192, subdivision 2 charge does not end the analysis of the speedy trial issues in this case. Under the operation of VTL § 1196, the People may proceed on a charge of driving while intoxicated VTL § 1192, subdivision 3. VTL § 1196, as more fully set out in a footnote, ¹ states that if the accusatory section of an accusatory instrument charges a violation of VTL § 1192, subdivision 2 or 3, then the People may proceed on any of the subdivisions of VTL § 1192. The constitutionality and application of this statute was upheld by the Court of Appeals in People v. Farmer, 36 N.Y.2d 386, 369 N.Y.S.2d 44, 330 N.E.2d 22 (1975).

The factual part of the original accusatory instrument set out sufficient non-hearsay allegations to form an information charging the defendant with common law driving while intoxicated under VTL § 1192, subdivision 3. That fact that subdivision 3 of ...