People v. White

• Decision Date: 29 September 1982
• Citation: 115 Misc.2d 800,454 N.Y.S.2d 792
• Parties: PEOPLE of the State of New York v. Arnold WHITE, Defendant.
• Court: New York City Court

Page 792

454 N.Y.S.2d 792

115 Misc.2d 800

PEOPLE of the State of New York v. Arnold WHITE, Defendant.

Criminal Court of City of New York New York County.

Sept. 29, 1982.

Robert M. Morgenthau, Dist. Atty., New York County by Bryan Williams, New York City, for the People.

Caesar D. Cirigliano, New York City by Steven Leventhal, for defendant.

BERNARD J. FRIED, Judge.

Defendant, who was convicted of resisting arrest (PL § 205.30) following a jury trial, moves for an order setting aside the verdict and for dismissal of the information. It is contended that the defendant was deprived of his right to a speedy trial in that a superseding prosecutor's information was filed after the statutory period had expired and that the People's earlier readiness could not have applied to the new instrument, even though it did not charge any new offenses. Additionally, it is contended that the failure to arraign defendant on the superseding information, absent express waiver, constituted a fatal defect. I disagree and, for the following reasons, defendant's motion is denied.

In the original accusatory instrument, a misdemeanor complaint which was timely converted to a misdemeanor information, defendant was charged with the offenses of attempted criminal possession of a weapon in the fourth degree (PL § 110.00 and 265.01), attempted grand larceny (PL § 110.00 and 155.30), resisting arrest (PL § 205.30), and criminal possession of a controlled substance in the seventh degree (PL § 220.03) (The factual allegations of this instrument are stated in the margin. ¹ ) Within the applicable time limitations, CPL § 30.30(1)(b), the People were ready to proceed. The chronology and speedy trial computation, is as follows: Defendant was arraigned on September 25, 1981 at which time the case was adjourned to October 15th (20 days includible time); on October 15 at defense request, the case was adjourned to November 4 (excludable time; CPL § 30.30(4)(b)); on November 4 there was a further adjournment to November 18, for the People to furnish defense counsel with a voluntary disclosure form (14 days includible); on November 18 the case was adjourned to December 3 at defense request (excludable time; CPL 30.30(4)(b)); on December 3 motions were waived and the case adjourned to December 22 (19 days includible); on December 22 there was a consensual adjournment (excludable time, CPL § 30.30(4)(b)). Thereafter, on January 7, 1982, the parties were ready for trial and the case was referred to my trial part where the superseding prosecution's information was filed. As computed, to that date the elapsed period of includible time amounted to fifty-three days, although over ninety actual days had elapsed since the commencement of this criminal action.

The superseding prosecutor's information, filed pursuant to CPL § 100.50(2), retained the original charges of resisting arrest and criminal possession of a controlled substance in the seventh degree, and deleted the other charges. The factual allegations however, remained substantially unchanged. ² Following colloquy concerning the superseding information a Sandoval hearing was held and a jury selected and sworn. At no time was defendant arraigned on the new information. On the following day, January 8, 1982, alleging a violation of his speedy trial rights, defendant moved to dismiss the superseding information. Decision on the motion was reserved and a briefing schedule was established, to include the issue whether his motion was waived as untimely made. ³ The controlled substance count was dismissed for reasons not here relevant, and the case proceeded to trial on one charge of resisting arrest. As stated, a verdict of guilty was returned and the instant motion followed.

Turning first to the speedy trial prong of this motion. Defendant relies on People v. Reid, 110 Misc.2d 1083, 1087, 443 N.Y.S.2d 600 (Criminal Court, N.Y. Cty., 1981) (CRANE, J.) which held that a superseding prosecutor's information, charging both a new crime, supported by the original factual allegation, as well as reiterating an originally-charged offense, must be filed "not only before commencement of a trial ... but also within the periods prescribed by CPL § 30.30(1)." Additionally, Reid held, that excludable periods applicable to the original information could not, in turn, be applied to the superseding prosecutor's information since the People were not prevented from filing such information within the prescribed speedy trial time limitations.

It is my view that Reid wrongly decided that the failure of the prosecutor to file his information within the periods prescribed by CPL § 30.30(1) is tantamount to a failure of readiness. Buttressing this view is the decision of the Appellate Term in People v. Colon, 112 Misc.2d 790, 450 N.Y.S.2d 136 (App.Term, 1st Dept. 1982) which, reversed the Criminal Court decision relied on by Reid, (cited as People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305 (Criminal Court, N.Y. Cty., 1981) (ATLAS, J.)) In Colon, the Appellate Term held that where defendant failed to appear on a desk appearance ticket, the People did not have to convert the misdemeanor complaint to an information within the speedy trial limits since such conversion could have been accomplished prior to trial. See also People v. Callender, 112 Misc.2d 28, 448 N.Y.S.2d 92 ( ), affg. 101 Misc.2d 958, 422 N.Y.S.2d 611 (Crim.Ct.N.Y.Cty., 1980) (H. Altman, J.) So too here; especially where the superseding information and the original information charge the same offenses and contain essentially the same supporting factual allegations. Moreover, the very language of section 100.50(2) of the CPL permits such filing "any time before ... commencement of a trial of an information." The legislature could hardly have been clearer in stating until when the filing is permissible. While it may be that, in a particular case charging a new offense, the superseding information may, somehow, implicate the speedy trial provisions, there cannot be any complaint when the superseding information repeats the original charge and factual allegations, although in more artful draftsmanship.

Finally, I disagree with Reid's holding that the excludable periods applicable to the original information do not also apply to the superseding information. Since the prescribed time period runs from "commencement of a criminal action", CPL § 30.30(1)(b), the prosecution's obligation to be ready is calculated from the date the first accusatory instrument is filed, People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 (1980); People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980). In reaching this conclusion, the Lomax case considered the time periods applicable to the original indictment which had been dismissed. ( People v. Lomax, supra, p. 358, n.2, 428 N.Y.S.2d 937, 406 N.E.2d 793). Therefore, contrary to Reid, I hold that, in deciding the speedy trial issue, any periods of excludable time that are applicable to the first accusatory instrument are equally applicable to the second instrument. Any other result would be bizzare. This conclusion is reinforced by section 1.20(17) of the CPL which states that "if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed." Since the speedy trial statute (CPL § 30.30) refers to "commencement of a criminal action", it would distort the "elaborate and detailed scheme for computing the statutory period, ... expressly provides for exclusion of certain periods", People v. Osgood, supra 52 N.Y.2d p. 41, 436 N.Y.S.2d 213, 417 N.E.2d 507, if it were held, in cases involving more than one accusatory instrument, that the...