People v. Vasquez

• Decision Date: 24 November 1986
• Citation: 133 Misc.2d 963,509 N.Y.S.2d 458
• Parties: The PEOPLE of the State of New York v. Nicholas VASQUEZ, Defendant.
• Court: New York Supreme Court

Page 458

509 N.Y.S.2d 458

133 Misc.2d 963

The PEOPLE of the State of New York v. Nicholas VASQUEZ, Defendant.

Supreme Court, Queens County Criminal Term, Part J7.

Nov. 24, 1986.

Jeffrey Nash, for defendant.

John J. Santucci, Dist. Atty. (Philip Simpson of counsel), for the People.

LEON A. BEERMAN, Justice.

This case presents the following novel and important question: Can a prosecutor circumvent the requirement that he be ready to try a misdemeanor case within 60 or 90 days (as the case may be) of the commencement of the action, by initially charging the defendant with a felony, reducing the charge to a misdemeanor at Criminal Court arraignment, and then obtaining an indictment after the misdemeanor case has been dismissed and the time to answer ready on the misdemeanor charged has expired?

Defendant Nicholas Vasquez has been charged in an indictment with committing the crimes of Attempted Burglary in the second degree and Possession of Burglar's Tools. He moves to dismiss the indictment on the ground that he has been denied his statutory right to a speedy trial. CPL § 30.30. A hearing on the motion was held on October 10, 1986. Based on the credible evidence the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On October 2, 1985, a felony complaint was filed against defendant, charging him with Attempted Burglary in the second degree. P.L. §§ 110.00/140.25 The deponent, a police officer, stated that the complainant, Eileen Maclin, had informed him that at 10:15 AM on September 30, 1985, defendant, a porter in her apartment building, attempted to enter her apartment with a set of keys, but left when she asked who was at the door.

At the Criminal Court felony complaint arraignment on October 2, the People moved to reduce the charge to Attempted Criminal Trespass in the second degree, a Class "B" misdemeanor. P.L. §§ 110.00/140.15. The court granted the motion, expressing concern that it was dubious whether even that lesser charge could be sustained, particularly since defendant knew the complainant and the incident occurred during his working hours as porter.

The court noted that the complainant had not signed a corroborating affidavit, and proposed to adjourn the case to October 21, 1986. The case was adjourned, however, to October 29, at defense counsel's request, since he informed the court that the proposed date would conflict with his vacation schedule.

On October 29, the corroborating affidavit had not been filed, so the case was adjourned to November 27. The judge endorsed the Criminal Court papers to indicate that the adjournment was chargeable to the People. The affidavit was finally filed on the 27th.

The parties agree that the adjournments between the 27th and January 9, 1986, were not chargeable to the People. On January 9, the prosecutor stated that he was not ready for trial, and asked for a two-week adjournment to produce the complainant. The court replied that if it granted the adjournment, it would charge the two weeks to the People. The judge also wrote on the Criminal Court papers, "C/W stalling?" Pursuant to the prosecutor's motion, the court dismissed the case on the 9th.

However, on January 22, 1986, the instant indictment was filed against defendant.

CONCLUSIONS OF LAW

The People bear the burden of proving that a given period of time is not chargeable to them for speedy trial purposes. People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980); see CPL § 30.30[4].

The People apparently do not contend, and certainly have in no way shown, that the period between January 9 and January 22, 1986 (between the dismissal of the information and the filing of the indictment) is excludable. Accordingly, those 13 days are chargeable to them.

The People apparently concede the correctness of the marking on the Criminal Court papers that the period between October 29 and November 27, 1986 (when the case was adjourned for the corroborating affidavit) was chargeable to them. See People v. Colon, 59 N.Y.2d 921, 923, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), aff'g on the opinion below, 110 Misc.2d 917, 919-22, 443 N.Y.S.2d 305 (Crim. Ct., N.Y.Co. 1981). Accordingly, those 29 days are chargeable to them.

The People also apparently concede that the period between October 2 and October 21, 1986, is chargeable to them, as the proposed adjournment from the time of the Criminal Court arraignment until the 21st was for the purpose of obtaining the corroborating affidavit. Thus, those 19 days are also chargeable to the People.

Defendant contends that the period between October 21 and October 29, 1986, is also chargeable to the People. The People argue to the contrary, since defense counsel requested that the adjourned date be postponed for eight days because of his vacation schedule. The People would appear to be correct. People v. Worley, 66 N.Y.2d 523, 526-28, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985). This Court need not resolve this dispute, as 61 days are concededly charged to the People, and the Court now holds that the 60-day readiness period for a Class B misdemeanor, and not the six-month period for felonies, is applicable to the instant case.

Our starting point must, of course, be the language of the statute itself. No portion of section 30.30 directly addresses the issue before this Court. Two portions shed some light on the matter, but they suggest contrary results.

Subdivision 5, paragraph (c) of section 30.30 provides as follows:

a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 or a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.

Although not determinative, this language supports defendant's position. Since the felony complaint in this case was replaced with or converted to a Class B misdemeanor complaint, the time for the People to be ready in this case became 60 days from the date of replacement or conversion. CPL § 30.30 Neither subdivision 5, paragraph (c) nor any other portion of section 30.30 indicates that the six-month felony readiness period is resurrected if the case is returned to its original felony status after its reduction to a misdemeanor case.

On the other hand, subdivision 1, paragraph (a) of section 30.30 provides that the People must be ready for trial within "six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." Thus, it has been argued that, since defendant was charged with a felony at the time the motion to dismiss was made, the applicable readiness period is six months.

Hence, looking solely at the language of the statute, the best that can be said is that the language is ambiguous regarding the resolution of the instant matter. Accordingly, resort must be made to case law and the general purposes of section 30.30.

The only case closely analogous to the instant matter is People v. England, N.Y.L.J., March 27, 1981, p. 13, col. 1 (Crim. Ct., N.Y.Co.). In England, the defendants were charged in Class B misdemeanor complaints, and then, after they moved to dismiss the complaints on the ground that the 60-day readiness period had expired, the People moved to amend the accusatory instruments to charge Class A misdemeanors, which allegedly were supported by the factual allegations in the instruments. The court granted the motions to dismiss, stating:

To permit the People to amend the information, which never charged a Class A misdemeanor, although assuming arguendo that the factual allegations could have permitted such change, would emasculate the statutory speedy trial scheme. If the People have chosen to proceed with the Class "B" misdemeanor, and having failed to be ready for trial, they could avoid the statutory sanction by upgrading the offense. Followed to its logical conclusion, it would mean that in Class A misdemeanor cases, when the time has run out, the People could simply then charge a felony, since many misdemeanors arise out of circumstances involving felony conduct, although proper exercise of prosecutorial discretion warrants only a misdemeanor filing.

This language, particularly the analogy to a misdemeanor's being raised to a felony, is obviously applicable to the instant case. Indeed, the only difference between England and the instant case is that in England the crime level to which the People wished to up the case (there a Class A misdemeanor) was not specifically charged in the original accusatory instrument (although the People there alleged that the factual allegations in that instrument supported a Class A misdemeanor charge).

This distinction is...