People v. Villarreal

• Decision Date: 12 November 2009
• Citation: 27 Misc.3d 269,898 N.Y.S.2d 761
• Parties: The PEOPLE of the State of New York v. Julio C. VILLARREAL, Defendant.
• Court: New York Criminal Court

898 N.Y.S.2d 761

27 Misc.3d 269

The PEOPLE of the State of New York

v.Julio C. VILLARREAL, Defendant.

Criminal Court, City of New York, Queens County.

Nov. 12, 2009.

Richard A. Brown, District Attorney, Kew Gardens (Matthew Sweet of counsel), for plaintiff.

Peter F. Zullo, Forest Hills, for defendant.

STEPHANIE ZARO, J.

The defendant is charged with Bail Jumping in the Third Degree (PL § 215.55).

The defendant moves for: (1) Dismissal of the Accusatory Instrument; (2) Discovery;(3) a Sandoval Hearing; and (4) Reservation of Rights. The People have filed an Affirmation in Opposition. The motion is decided as follows:

DISMISSAL OF THE ACCUSATORY INSTRUMENT

A legally sufficient information must contain non-hearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof. An information that fails to satisfy these requirements is jurisdictionally defective (CPL § 100.40[1]; § 100.15[3]; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987]; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ).

In reviewing an accusatory instrument for facial sufficiency, "so long as the factual allegations of an information give the accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense ..." the court should give it a "fair and not overly restrictive or technical reading" ( People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). Furthermore, the Court of Appeals in People v. Allen, 92 N.Y.2d 378, 681 N.Y.S.2d 216, 703 N.E.2d 1229 (1998), held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges.

The relevant section of the complaint is as follows:

Deponent states that she has examined a certified printout of the CRIMS computer system (attached hereto), which contains the procedural history of a case pending before the New York City Criminal Court that shows the following:

That, by court order, the defendant Julio C. Villarreal was released from custody and allowed to remain at liberty on his own recognizance or upon bail upon the condition that the defendant subsequently appear personally on September 22, 2008.

Deponent further states that on 9/22/2008, in Part AP2, in connection with docket number 2008QN033410, a criminal proceeding or action charging the defendant and which is pending before the Criminal Court of the City of New York, the defendant failed to appear personally as required on the date, or within thirty (30) days thereafter.

Penal Law § 215.55 states that "a person is guilty of bail jumping in the third degree when by court order he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a criminal action or proceeding, and when he does not appear personally on the required date or voluntarily within thirty days thereafter." The defendant contends that he was incarcerated during the relevant time period and that his failure to appear was not voluntary. He argues that, as such, "the accusatory instrument is defective, in that the People have failed to allege non-hearsay allegations that the defendant failed to return voluntarily' within thirty days thereafter when in fact he was a prisoner." Additionally, he argues that the accusatory instrument should be dismissed both in the interest of justice and "ethical considerations." The People, in their affirmation in opposition, contend that while the defendant raises a potential affirmative defense in his motion, the fact that a viable defense exists does not negate the facial sufficiency of the accusatory instrument, citing People v. Branch, 19 Misc.3d 255, 852 N.Y.S.2d 676 [Crim. Ct. Queens Cty. 2007].

Penal Law § 215.59 states that "in any prosecution for bail jumping ... it is an affirmative defense that: 1. The defendant's failure to appear on the required date or within thirty days thereafter was unavoidable and due to circumstances beyondhis control; and 2. During the period extending from the expiration of the thirty day period to the commencement of the action, the defendant either: (a) appeared voluntarily as soon as he was able to do so, or (b) although he did not do so appear, such failure wasunavoidable and due to circumstances beyond his control."

The issue presented is whether PL § 215.59 constitutes a legislative exception or proviso. In People v. Santana, 7 N.Y.3d 234, 818 N.Y.S.2d 842, 851 N.E.2d 1193 (2006), the Court of Appeals addressed this issue and held that if the criminal statute contains an exception as opposed to a proviso, the accusatory instrument must allege that the crime is not within the exception. As a general rule, the People are required to plead and prove that the exception did not exist at the time the crime was committed. A proviso, on the other hand, may be raised as a defense by the defendant, and if he fails to do so, it is waived. In determining whether a provision constitutes an exception or proviso, various courts have...