People v. Stewart

Citation142 N.Y.S.3d 763,71 Misc.3d 310
Decision Date18 February 2021
Docket NumberCR-1799-20
Parties PEOPLE of the State of New York v. Andrea M. STEWART, Defendant.
CourtNew York City Court

71 Misc.3d 310
142 N.Y.S.3d 763

PEOPLE of the State of New York
Andrea M. STEWART, Defendant.


City Court, New York, City of Glens Falls, Warren County.

Decided on February 18, 2021

142 N.Y.S.3d 764

Hon. Jason M. Carusone, Warren County District Attorney, (Lily Gebru, Esq., Assistant District Attorney, of counsel for the Plaintiff)

Marcy I. Flores, Esq., Warren County Public Defender, (Damara J. Fredette, Esq., and Brian C. Pilatzke, Esq., Assistant Public Defenders, of counsel for the Defendant)

Gary C. Hobbs, J.

142 N.Y.S.3d 765
71 Misc.3d 311

Procedural History

On December 7, 2020, the defendant, Andrea M. Stewart, through her attorney, filed a motion to dismiss on the grounds that the criminal information charging the defendant with the crime of Bail Jumping in the Third Degree [ Penal Law § 215.55 ] was facially insufficient pursuant to CPL 170.30(1)(a). This Court denied the defendant's motion by Decision and Order dated December 24, 2020.

The defendant now moves this Court for leave to reargue her prior motion pursuant to CPLR 2221(2)(d). In deciding the defendant's motion to reargue, the Court has reviewed and filed: the affirmation of Damara J. Fredette, sworn to on December 7, 2020, together with attached exhibits; the affirmation by Lily Gebru, Esq., sworn to on December 11, 2020, in opposition; the affirmation in support of the motion to reargue of Brian D. Pilatzke, Esq., sworn to on December 29, 2020; the December 30, 2020 letter response of Assistant District Attorney Lily Gebru, Esq., in opposition to the defendant's motion to reargue. This Court has also considered the oral arguments of counsel heard on January 19, 2021 on the defendant's motion. Finally, this Court has reviewed and takes judicial notice of the record of proceedings, orders and notices contained in its own files in Docket Numbers CR-1799-20, CR-0503-20, and CR-1318-20.


On May 5, 2020, the defendant was charged with the crime of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law § 220.03 ] in this Court's Docket CR-0503-20. After the defendant failed to appear for her arraignment on June 11, 2020 and again on June 23, 2020, this Court issued an arrest warrant.1 On August 26, 2020, the defendant was apprehended on the arrest warrant and arraigned on this charge. At the arraignment, the defendant was represented

71 Misc.3d 312

by Glenn Liebert, Esq., Assistant Public Defender. The Assistant District Attorney, Lily Gebru, extended the plea bargain offer, which had been provided to the Public Defender's Office on June 11, 2020. After she was arraigned, the proposed plea offer was read into the record by defense counsel. The offer included a plea of guilty to the crime of Criminal Possession of a Controlled Substance in the Seventh Degree and a proposed sentence of a conditional discharge, fine and surcharge per the Court, an OASAS drug and alcohol evaluation and compliance to successful completion of any recommended treatment. After a discussion of the proposed offer with defense counsel, the defendant decided to accept the offer.

On August 26, 2020, the defendant entered a guilty plea to the charge of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law § 220.03 ]. The defendant was then sentenced to the agreed upon sentence of a one-year conditional discharge. The Court's written Order of Conditional Discharge included a condition requiring the defendant to:

"Obtain a Drug/Alcohol Evaluation from an approved New York State

142 N.Y.S.3d 766

Certified Agency, and provide a copy of your Evaluation to this Court on or before 9/29/20. If treatment is recommended, you are to follow any and all treatment recommendations including, but not limited to, in-patient or out-patient treatment, residential or aftercare treatment. You are not to discharge yourself from treatment, until you have successfully completed your entire course of treatment. You are to pay all costs and expenses of your treatment. You are to execute any releases or authorizations necessary to allow this Court to obtain any reports and/or up-dates concerning your treatment. You are required to obtain from your treatment provider and file with this Court any updates on your treatment as requested by this Court." (Underlining in Original).

At the conclusion of her arraignment, plea and sentence, this Court ordered the defendant released from custody and directed her to appear on September 29, 2020 to provide proof of her OASAS evaluation. She was provided with a written notice of adjournment, which states, in relevant part, "YOUR CASE HAS BEEN ADJOURNED IN THIS COURT UNTIL ... 9/29/20 for a Treatment Evaluation or Report " (Emphasis in Original). This notice further states, "Your Failure to Appear in Court on the above

71 Misc.3d 313

Date May Result in a Bench Warrant Being Issued for Your Arrest ..."

On September 29, 2020, the defendant failed to appear in court and produce a drug/alcohol evaluation. The matter was adjourned to October 8, 2020. On September 29, 2020, a written "Notice of Failure to Appear" was mailed to the defendant, which states:

"TAKE NOTICE that you were directed to appear on 09/29/2020 in the Glens Falls City Court to address the following charges: PL 220.03 AM Crim Poss Control Subst-7th AND, you failed to appear as directed. The matter has now been scheduled as follows: 10/08/2020 at 9:00 AM " (Emphasis in Original).

This notice also advised the defendant of the Court's address for her appearance and further stated, "If you fail to personally appear in court on the rescheduled date as indicated above, the court will issue a warrant for your arrest and any bail posted will be forfeited. You may also be subject to additional penalties under the New York State Penal Law without further notice. " (Emphasis in original).

On October 8, 2020, the defendant again failed to appear and, on that date, the Court issued a Declaration of Delinquency and Notice of Appearance for the defendant to appear on October 15, 2020.2 The Declaration of Delinquency alleged that the court has reasonable cause to believe that the defendant violated the Court's conditional discharge in that she: (a) failed to provide the Court with a copy of a Drug/Alcohol Evaluation on or before 9/29/20, which was extended to 10/8/2020, and (b) on September 24, 2020, she was re-arrested on new charges of Criminal Possession of Controlled Substance Seventh Degree [ Penal Law § 220.03 ](2 counts) and Criminally Using Drug Paraphernalia in the Second Degree [ Penal Law § 220.50(3) ] under Docket No. 1318-20. The Declaration of Delinquency warned that a failure to appear may result in a warrant for her arrest.

On October 15, 2020, the defendant again failed to appear in Court and a bench warrant was issued for her arrest on

142 N.Y.S.3d 767

the Declaration of Delinquency [Docket No. CR-0503-20]. An arrest warrant was also issued for her failure to appear for her arraignment on the new charges of Criminal Possession of Controlled Substance Seventh Degree and Criminally Using

71 Misc.3d 314

Drug Paraphernalia in the Second Degree under Docket No. CR-1318-20.3

On November 30, 2020, the defendant was apprehended on this Court's October 15, 2020 bench and arrest warrants. On November 30, 2020, the Glens Falls Police charged the defendant with the crime of Bail Jumping in the Third Degree [ Penal Law § 215.55 ]. The factual portion of the Bail Jumping 3d Degree complaint alleges that:

"the defendant, Andrea M. Stewart, was released from custody or allowed to remain at liberty, either upon bail or upon his [sic] own recognizance, upon condition that he [sic] will subsequently appear in personally [sic] in connection with the criminal action or proceeding, and when he [sic] does not appear personally on the required date or voluntarily within thirty days thereafter. Specifically, your defendant was directed to appear in Glens Falls City Court on September 29, 2020, October 8, 2020, and October 15, 2020 all of which were more than thirty days."

The complaint is signed by Officer Zachary Tanner and asserts that it is "based on personal knowledge, the source being review of criminal history and copy of warrant." There was no supporting deposition filed with the accusatory instrument. The defendant was arraigned on the Bail Jumping 3d Degree charge on November 30, 2020 at the Warren County Centralized Arraignment Part, and was held on bail of $750.00 cash, or $1500.00 insurance bond or $1500.00 Partially Secured Surety Bond. The defendant posted bail on December 2, 2020.

Defendant's Motion to Dismiss and Reargue

In her original motion to dismiss and in the present motion to...

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