People v. Williams

• Citation: 465 N.Y.S.2d 648,120 Misc.2d 68
• Parties: The PEOPLE of the State of New York v. Lisa WILLIAMS, Defendant.
• Decision Date: 30 June 1983
• Court: New York City Court

Page 648

465 N.Y.S.2d 648

120 Misc.2d 68

The PEOPLE of the State of New York v. Lisa WILLIAMS, Defendant.

Criminal Court of the City of New York,

Bronx County, Part AP4.

June 30, 1983.

Caesar Cirigliano, Legal Aid Society, New York City (Charles J. Ippolito, New York City, of counsel; James Bradford, Norma Ruiz and Richard D. Willstatter, New York City, on brief), for defendant.

Mario Merola, Dist. Atty., New York City (Lee D. Klein, New York City, of counsel; Nancy Zecca and David S. Zuckerman on brief), for the People.

BERTRAM KATZ, Judge:

The defendant, Lisa Williams, has challenged the Bronx District Attorney's practice of reducing certain "A" misdemeanor cases (punishable by a maximum term of one year) to "B" misdemeanors (punishable by a maximum term of 3 months) on the eve of trial. The effect of the last-minute reduction, besides providing an obvious benefit to the defendant, is to deprive the defendant of the right to trial by jury. The Legal Aid Society, which represents numerous defendants affected by this procedure, in addition to Lisa Williams, has brought this motion in virtually identical form throughout the Bronx Criminal Court. It is therefore necessary to discuss the relevant issues at some length.

This particular defendant's progress through the criminal justice system is illustrative of the pattern that the District Attorney has been following. The original charges were assault in the second degree and criminal possession of a weapon in the fourth degree. Both charges arose out of an incident at Montefiore Hospital. While being treated there, the defendant is alleged to have struck a hospital official with a cane, causing serious physical injury. On one of defendant's numerous court appearances, the felony assault charge was reduced to assault in the third degree, a class "A" misdemeanor. The stage was now set for the controversial reduction procedure. On the brink of trial, the District Attorney reduced both charges to attempts (P.L. Secs. 110.00 to 120.00 and 110.00 to 265.01 respectively) on oral application over vigorous defense objections. The reduced charges are "B" misdemeanors. This court then granted leave to the defendant to challenge the procedure through written motion.

The defendant has attacked the reduction on four grounds:

1. No reduction of charges may take place in the absence of notice and an opportunity for the defendant to be heard. Absent strict compliance with CPL 100.45 (subd. 3), the court lacks subject matter jurisdiction over the reduced charges, which therefore must be dismissed.

2. Attempted assault and attempted possession of a weapon are illusory or hypothetical crimes concocted by the prosecution with the sole purpose of depriving the defendant of her right to trial by jury without due process of law.

3. An attempt to commit a crime cannot be charged where the original information charges a completed crime, and where the sole purpose of charging the attempt is to avoid a jury trial.

4. The crimes of attempted assault and attempted possession of a weapon are by their very nature serious crimes that entitle the defendant to a trial by jury. They are malum in se crimes indictable at common law; the court, therefore, may not look solely to the extent of punishment provided by law to determine whether these crimes are "serious" or "petty."

Other defense arguments include the allegation that the District Attorney's reduction to a "B" misdemeanor usurps a legislative function, and that the attempted crimes are void for vagueness.

Finally, the defendant has moved for dismissal in the interests of justice. (CPL 170.40).

Notice Under CPL 100.45

The Court will not dwell too long on the defendant's theory that a reduction made in the manner of the District Attorney in this case must comply with the notice provisions of CPL 100.45 (subd. 3). A cursory reading of CPL 100.50 (subd. 2), which is the relevant statute, would reveal that no notice, opportunity to be heard, or adjournments were required in this case. The District Attorney filed an information charging offenses fully supported by the facts in the original information. Bellacosa, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, Criminal Procedure Law, Sec. 100.50, p. 99.

People v. Harper, 37 N.Y.2d 96, 371 N.Y.S.2d 467, 332 N.E.2d 336, also cited by the defense, is inapposite. The challenge in that case was to the addition of unrelated charges without notice, not to the reduction. The Court concludes that there is no merit to that part of the defendant's motion based on notice.

Hypothetical Crimes

A more interesting proposition is that the reduction from charges of completed crimes to attempted ones is an intentional deprivation of the defendant's right to a jury trial in violation of due process of law. Indeed, the Court cannot close its eyes to this concerted course of conduct by the District Attorney's office. Often, cases are reduced even after being sent down to the Jury Parts of the Criminal Court. It is no secret that the procedure is an intentional one to lighten the backlog in the jury parts to reduce the District Attorney's own misdemeanor workload, and to dispose of as many cases, upon proper re-evaluation, as is possible. The prosecutor has the legitimate right to take into account his staffing and budgetary considerations in deciding which cases to subject to lengthy jury trials and which to dispose of as expeditiously as possible.

Nor can it be argued that any one defendant is being singled out for special treatment by the People. One of the Legal Aid attorneys has graciously provided the Court with a listing of 16 separate instances of last-minute reductions, demonstrating just how pervasive and routine the practice has become.

Nonetheless, the Court is compelled to agree with the defendant that the prosecutor's right to reduce cases in derogation of the right to trial by jury is not absolute. One limitation is the doctrine of hypothetical crimes. The only time when hypothetical crimes may be accepted by the Court is for the purpose of pleas. People v. Schmidt, 76 Misc.2d 976, 352 N.Y.S.2d 399. In Schmidt and in People v. Howlett, 76 Misc.2d 801, 351 N.Y.S.2d 289 (App. Term 1st Dept.) convictions on the hypothetical crime of attempted resisting arrest were reversed. The Howlett court held that it was error for the court to accept the reduction in the first instance.

These cases stand for the proposition that there cannot be an attempt to commit a crime which is in itself a mere attempt to do an act or accomplish a result.

Examples of hypothetical crimes include "attempted jostling" (People v. Lynn, 115 Misc.2d 76, 454 N.Y.S.2d 585), "attempted obstruction of governmental administration" (Schmidt, supra ), "attempted felony-murder" (People v. William M.T., 82 Misc.2d 308, 369 N.Y.S.2d 333, People v. Hendrix, 56 A.D.2d 580, 391 N.Y.S.2d 186 aff. 44 N.Y.2d 658, 405 N.Y.S.2d 31, 376 N.E.2d 192) and "attempted manslaughter" (People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200, People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922). The latter two "crimes" are illogical in a way distinguishable from the crimes in Schmidt, Howlett, and Lynn: the substantive crimes of felony-murder and manslaughter lack the specific intent required by the attempt crimes. However, all hypothetical crimes are alike in that they are inherently illogical and are therefore impossible of commission.

The charges that the prosecutor has fashioned in this case fall into a different category. These charges are not illogical or impossible under any statement of facts. They are, however, inconsistent with the initial information filed, which charged completed crimes, not attempts. That information read, in pertinent part, as follows:

"the defendant did unlawfully and knowingly have in her possession a dangerous instrument to wit, a wooden cane, with the intent to use said dangerous instrument against another, in that the defendant with the intent to cause physical injury to another did in fact cause such injury to the informant by the defendant striking the informant on the forehead with the aforementioned wooden cane and causing the informant to sustain a laceration of the forehead and making it necessary for the informant to be removed to Montefiore Hospital and receiving 10 stitches for said laceration."

An "attempted assault" has been upheld under certain singular fact patterns. For example, in People v. Robinson, 71 A.D.2d 779, 419 N.Y.S.2d 320 a prison inmate was convicted of attempted assault where he struck a guard with his fist, causing pain but no physical injury. See also People v. Asan, 22 N.Y.2d 526, 293 N.Y.S.2d 326, 239 N.E.2d 913.

Attempted possession of weapons, drugs or stolen property might occur in either of two ways: Impossibility cases under Federal Law and CPL 110.10, and those cases in which premature arrests were made by the authorities. In United States v. Marin, 513 F.2d 974 (2nd Cir., 1975) impossibility was ruled no defense to a charge of attempted possession of cocaine, where the defendant was arrested in possession of a federal agent's "dummy" package containing starch and quinine instead of drugs. Under the Federal Rules (Fed.Rule Crim.P.Sec. 31(c)) applied in Marin, a conviction for an attempt may lie even if the indictment charges a completed offense. Other impossibility cases include United States v. Heng Awkak Roman, 356 F.Supp. 434, aff'd 484 F.2d 1271 (2nd Cir., 1973) cert. den. 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1973), United States v. Sheikh, 654 F.2d 1057 (5th Cir., 1981) cert. den. 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852, People v. Ettman, 99 Misc.2d 120, 415 N.Y.S.2d 599, People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 721, and People v. Vandercook, 99 Misc.2d 876, 417 N.Y.S.2d 447. See 85 A.L.R.2d 259.

An example of a case of "premature arrest" is United States v. Cafaro, 480 F.Supp. 511 (S.D.N.Y.) 1979, where the...