People v. Thomas

• Citation: 106 Misc.2d 64,432 N.Y.S.2d 317
• Parties: The PEOPLE of the State of New York v. Mark THOMAS, Defendant.
• Decision Date: 19 September 1980
• Court: New York City Court

Page 317

432 N.Y.S.2d 317

106 Misc.2d 64

The PEOPLE of the State of New York v. Mark THOMAS, Defendant.

Criminal Court of the City of New York, Queens County, Part 3A.

Sept. 19, 1980.

John J. Santucci, Dist. Atty., Queens County, Kew Gardens (Rocky Piaggione, Asst. Dist. Atty., Kew Gardens, of counsel), for the People.

Leon B. Polsky, Forest Hills (Marvin E. Schechter, Forest Hills, of counsel), for defendant.

NICHOLAS L. PITARO, Judge:

Following this Court's 430 N.Y.S.2d 551 decision of August 1, 1980 precluding the District Attorney for failure to comply with defendant's Demand for Discovery and for failure to comply with a June 17, 1980 court order granting a Bill of Particulars, two motions were made. The defendant moved to dismiss the information pursuant to Sec. 170.30 C.P.L., based upon an alleged legal impediment to prosecution (the Court-ordered preclusion). The People moved to reargue that portion of the August 1st decision of this Court precluding the People on matter covered by the Bill of Particulars. This Court granted leave to reargue and both sides submitted papers. After careful consideration, this Court makes the following conclusions of law with respect to the two pending motions.

CONCLUSIONS OF LAW

The controlling statute dealing with Bills of Particulars in criminal cases is Sec. 200.90 of the Criminal Procedure Law, which is made applicable to prosecutions of misdemeanor informations through Sec. 100.45(4) of the Criminal Procedure Law. Prior to its enactment in 1971, Bills of Particulars were granted based upon common law and the authority of the Civil Practice Law & Rules. In reargument, the People contend that the remedies permitted under Sec. 200.90 are exclusive and that preclusion is not an available remedy. Sec. 200.90 was amended in 1979, in pertinent part, as follows:

"5. Upon an order granting a motion pursuant to this section, the district attorney must file with the court a bill of particulars, reciting every item of information designated in the order, and serve a copy thereof upon the defendant. Pending such filing and service, the proceedings are stayed.

6. At any time before trial the court must, and at any time during trial the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of a bill of particulars. Upon permitting such an amendment the court must, upon application of the defendant, order any adjournment of the proceedings or other appropriate action which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to defend." (emphasis added)

The People assert that staying the proceedings and/or amendment are the sole remedies available to a criminal court in the event of non-compliance with a court order for a bill of particulars.

I. PRECLUSION IS AN AVAILABLE REMEDY

The People's assertions are persuasive, but are incomplete as illustrated by the case at bar. This case does not lie squarely within the available remedy of subdivision 5, staying the proceedings, insofar as a bill was filed, but filed beyond what, in this case, could be considered a "reasonable time" (35 days from service of the order). Therefore, staying the proceedings was inappropriate. The bill filed by the People provided "scant compliance" with the order for disclosure at best. Yet, since no motion to amend was made by the People, subdivision 6 of Sec. 200.90 was not an available remedy in this case. (Subdivision 6 provides for a motion to amend to be made by the People. It does not provide that leave to amend can be granted sua sponte by the Court.)

The supplementary Practice Commentary to the 1979 revision of Sec. 200.90 C.P.L. by Joseph W. Bellacosa states that "(s)ubdivision 6 is designed to permit subsequent amendments so as to preclude preclusions." McKinney's Criminal Procedure Law, Book 11A, 1979, p. 153. However, that commentary would be limited to the instance where the People exhibit a willingness to amend. Where no willingness to amend exists, resort to preclusion would be permissible under the basic rule that where no remedy exists under the...