People v. Solomon

• Decision Date: 11 October 1977
• Citation: 91 Misc.2d 760,398 N.Y.S.2d 643
• Parties: The PEOPLE of the State of New York v. Pierre L. SOLOMON, Defendant.
• Court: New York City Court

Page 643

398 N.Y.S.2d 643

91 Misc.2d 760

The PEOPLE of the State of New York v. Pierre L. SOLOMON, Defendant.

Criminal Court of the City of New York, New York County, Jury I.

Oct. 11, 1977.

Robert M. Morgenthau, Dist. Atty., New York County, by Rebecca H. Rawson, Asst. Dist. Atty., of counsel, for the People.

Legal Aid Society by Craig Kaplan, New York City, for defendant.

ELLIOTT GOLDEN, Judge.

The defendant, Pierre L. Solomon, by his attorney, seeks to challenge a preliminary hearing determination of reasonable cause by a motion to reargue, and also moves for discovery and inspection and a bill of particulars.

Defendant was arrested on December 17, 1976, and charged in a felony complaint with a violation of Penal Law § 155.35, grand larceny in the second degree (a Class D felony), in that he, acting in concert with another, did take a quantity of clothing valued in excess of $1,500 from the possession of Pat Mortorano without permission or authority to do so. He was arraigned on December 18, 1976, at which time bail was set in the sum of $1,000 and the case adjourned to December 21, 1976. On December 21, 1976, a preliminary hearing was held and after the hearing and upon the motion of the District Attorney, the felony charge was reduced to petit larceny (Penal Law § 155.25). Bail was reduced to $500 cash or bond and a jury trial requested. Defendant was paroled on December 22, 1976.

The defendant, on March 25, 1977, orally notified the court that he intended to move with respect to the preliminary hearing. Motion papers were subsequently submitted to the court (one motion having been made returnable May 16, 1977 for a bill of particulars and for discovery and inspection, and one motion returnable April 25, 1977 to reargue the preliminary hearing).

The District Attorney submitted a memorandum in opposition to the defendant's motions. The defendant submitted a supplemental memorandum in response, to which the District Attorney replied. Decisions on both motions were reserved by the court.

The District Attorney urges that the court should summarily deny these motions pursuant to CPL 255.20(3) for defendant's failure to move within forty-five days of arraignment.

On the issue of timeliness, CPL 255.20(1) provides:

"1. Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pretrial motions shall be made within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment. . . ." (Emphasis added)

There is some evidence in the file of this defendant that another judge of this court was notified of the intent to make the motion to reargue the preliminary hearing and that leave was given to submit the necessary motion papers. The motions for a bill of particulars and discovery and inspection were not made simultaneously with the motion to reargue, but CPL 255.20(2) provides:

"2. All pre-trial motions, with supporting affidavits, affirmations, . . . whenever practicable, shall be included within the same set of motion papers, and shall be made returnable on the same date, unless the defendant shows . . . . Where one motion seeks to provide the basis for making another motion, it shall be deemed impracticable to include both motions in the same set of motion papers . . . ."

The defense counsel has indicated in his motion papers that if he prevailed in his motion to reargue the preliminary hearing, there would be no need for the motions for bill of particulars and discovery and inspection.

Additionally, CPL 255.20 provides that the court must entertain and determine any pretrial motions, even if not made within the forty-five day period, if based on grounds which the defendant, with due diligence, could not have been aware of, or for other good cause could not have reasonably made the motion within the forty-five day period (CPL 255.20(3)). Furthermore, the court "in the interest of justice, and for good cause shown, may in its discretion" entertain and dispose of pretrial motions. There is liberality in the application of the rule (see People v. Wyssling, 82 Misc.2d 708, 372 N.Y.S.2d 142, and Practice Commentary to § 255.20 by Joseph W. Bellacosa).

There has been no showing by the defendant of good cause for the delay in making these motions, and such delay should not be countenanced. Neither has there been any showing of prejudice to the People, although undue delay can be prejudicial to both sides and to the proper administration of justice. However, because leave was apparently given to the defendant in which to file his motion to reargue the preliminary hearing (although his request for leave was not within the 45 day period), and in view of the court's discretionary powers, both motions are deemed timely.

Having resolved the issue of timeliness, I now address the issue raised by the defendant with respect to a motion to reargue the preliminary hearing, or, in the alternative, to grant a new preliminary hearing with respect to the petit larceny charge.

The defendant offers several bases in support of his motion which, generally, relate to the merits of the hearing; and he cites many errors of law allegedly committed by the judge at the preliminary hearing. He further argues that the various restrictions placed by the judge upon the defendant's right to cross-examine witnesses at the preliminary hearing was tantamount to a denial of the right to counsel as required under Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

The District Attorney contends that the motion papers are insufficient to support the motion; that the motions are intended as a dilatory tactic, and that the court should deny the motion with prejudice. The District Attorney also rejects the defense counsel's assertion that reasonable cause was not established at the preliminary hearing.

The judge who held the preliminary hearing on December 21, 1976, and made the finding of reasonable cause is no longer assigned to this court. Normally a motion to reargue may be made before the same judge who previously denied the relief sought or made the determination sought to be reargued.

Statutory authority for this court to review the sufficiency of a preliminary hearing in a misdemeanor case appears to be lacking. Criminal Procedure Law 170.75, requiring a preliminary hearing on a misdemeanor charge, applies only in New York City and no such requirement exists outside of New York City, where, consequently, a defendant could not raise a claim such as this defendant is raising.

The basic issue is whether it is within the jurisdiction of this court to grant the remedy requested by the defendant, i. e., a reargument of the motion to dismiss after there has been a felony hearing and a reduction of the grand larceny charge to petit larceny, or, in the alternative, for a new preliminary hearing on the reduced charge. Secondarily, the court will explore the avenues open to the defendant, if any, to obtain such remedy and whether the trial vitiates errors of the nature alleged here.

The felony hearing and conversion to a misdemeanor information is pursuant to CPL 180.50, 180.60, and 180.70(2). The conversion to an information took place on December 21, 1976, the date of the felony hearing. Criminal Procedure Law 180.50(3)(d) provides that upon the filing of an information, prosecutor's information or misdemeanor complaint pursuant to 180.50, the court must dismiss the felony complaint and the defendant must then be arraigned upon the new accusatory instrument.

Jurisdiction of local criminal courts is set forth in CPL 10.30. Local criminal courts have trial jurisdiction of all offenses other than felonies, exclusive trial jurisdiction of petty offenses (violations and traffic infractions), except where 10.20 provides jurisdiction to superior courts, and trial jurisdiction of misdemeanors (concurrent with that of the superior courts but subject to the divestiture by the superior courts under CPL 10.20, subd. 1(b)). Local criminal courts have preliminary jurisdiction of all offenses subject to divestiture by the superior courts and their grand juries.

"Preliminary jurisdiction" is defined as follows:

"A criminal court has 'preliminary jurisdiction' of an offense when, regardless of whether it has trial jurisdiction thereof, a criminal action for such offense may be commenced therein, and when such court may conduct proceedings with respect thereto which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof." (CPL 1.20(25))

The "trial jurisdiction" of the court is defined as follows:

"A criminal court has 'trial jurisdiction' of an offense when an indictment or an information charging such offense may properly be filed with such court, and when such court has authority to accept a plea to, try or otherwise finally dispose of such accusatory instrument." (CPL 1.20(24))

Thus, preliminary jurisdiction in the instant case exists under CPL 10.30 as well as authority to make a proper disposition of the felony complaint under sections 180.50, 180.60 and 180.70. The still unresolved question, however, is whether such preliminary jurisdiction would permit the court to conduct a rehearing upon the felony complaint, that is, to revive an already dismissed felony charge. This court finds no authority to grant such a rehearing. The defendant, however, has not asked for a rehearing on the felony charge but, rather, a reargument, i. e., that the court re-evaluate its findings of the preliminary felony hearing, taking into account certain errors alleged by the defendant to have existed. It is an appeal to the court to rectify its previous decision. In the alternative, the defendant requests a new preliminary hearing upon the (reduced) petit larceny charge. While there is statutory...