People v. Williams

• Decision Date: 30 July 2015
• Docket Number: No. 2015BX000377.,2015BX000377.
• Citation: People v. Williams, 22 N.Y.S.3d 138(Table) (N.Y. Crim. Ct. 2015)
• Parties: The PEOPLE of the State of New York, v. Anthony WILLIAMS, Defendant.
• Court: New York Criminal Court

22 N.Y.S.3d 138 (Table)

The PEOPLE of the State of New York,

v.Anthony WILLIAMS, Defendant.

No. 2015BX000377.

Criminal Court, City of New York, Bronx County.

July 30, 2015.

Robert T. Johnson, District Attorney, Bronx County by Paige Wallace, Assistant District Attorney, for the People.

The Bronx Defenders by Linda B. Evarts, for Defendant.

ARMANDO MONTANO, J.

The motion by the People for an order, pursuant to CPLR 2221(d), granting leave to reargue this court's February 20, 2015 oral decision finding that the complaint was not converted to an information, is hereby granted. Upon reargument, this court adheres to its prior decision.

Defendant is charged with four counts of Falsely Reporting an Incident in the Third Degree (PL §§ 240.50[1], [2], and [3][a] ) and Criminal Impersonation in the Second Degree (PL § 190.25[3] ).

According to the accusatory instrument, the deponent, Officer Brian Kovarik, reviewed official records of the New York City Police Department ("NYPD"), which are made in the regular course of business and recorded within a reasonable time after an occurrence. A review of said records revealed that on or about January 3, 2015 at approximately 7:26 PM, 7:36 PM, 8:28 PM, and 9:18 PM at the vicinity of Webster Avenue and East Tremont Avenue in Bronx County, defendant allegedly made four telephone calls to 911 where he identified himself as a plain clothes officer in need of assistance. Officer Kovarik along with additional NYPD units responded to each of the calls. Upon investigation, Officer Kovarik concluded that the reported incidents did not occur. The accusatory instrument further alleges that defendant admitted to making the calls. After conducting a search of NYPD records, Officer Kovarik learned that defendant had never been employed by the NYPD.

Defendant was arraigned on January 4, 2015 and released on his own recognizance. The case was adjourned to February 20, 2015 for conversion. On January 29, 2015, the People filed with the court and served on defense counsel a superseding information and a statement of readiness.

On February 20, 2015, the People stated that they were ready. Defense counsel made an oral application and argued that the accusatory instrument remained unconverted. Defense counsel analogized the instant case to a VTL § 511 case where the People are required to file a Department of Motor Vehicles Abstract of Driving Record in order to convert the complaint. Similarly here, since the deponent is relying upon official NYPD records of which he has no personal knowledge, defense counsel asserted that these records need to be provided. In response, the People maintained their readiness and argued that such records were not required for purposes of conversion. This court disagreed with the People and held that the People were required to provide either the original written records or the transcripts of the 911 calls for purposes of conversion. To date, the People have failed to provide the pertinent records.

The People argue that this court erred in ruling that the instant accusatory instrument was not converted. Citing People v. Casey, 95 N.Y.2d 354 (2000), the People aver that documents referenced in a complaint need not be attached if the elements of a hearsay exception are made out in the complaint itself. The People refer to the accusatory instrument which reads in pertinent part that:

Deponent states that he has reviewed the official records of the New York City Police Department, which are made in the regular course of business and recorded within a reasonable time after an event or occurrence. [A]s a New York City Police Department Police Officer, he has access to the records of the New York City Police Department.

The People allege that the accusatory instrument clearly states that Officer Kovarik is a custodian of the records of the NYPD with personal knowledge of the contents of the 911 calls at issue. The accusatory instrument further states that Officer Kovarik responded to each of the 911 calls. Therefore, the People contend that Officer Kovarik is capable of laying the requisite foundation for the business records exception to the hearsay rule to properly convert the complaint.

In opposition, defendant argues that the instant motion should be denied outright as untimely. Notwithstanding the untimeliness of the motion, defendant argues that this court correctly determined that Officer Kovarik's allegations regarding the content of the 911 calls is hearsay. Consequently, defendant maintains that the accusatory instrument remains unconverted to the extent that it relies upon the content of the 911 calls. Defendant also notes that the People, without citing any authority, assume that the 911 calls would be admissible at trial under the business records exception to the hearsay rule. Defendant argues that the People have failed to demonstrate that defendant had a business duty to report the occurrences and as such, the business records exception is inapplicable herein. Furthermore, assuming arguendo that the 911 calls do qualify as business records, defendant asserts that this only means that the 911 calls are admissible, not that Officer Kovarik may testify as to its contents.

With respect to the People's reliance on Casey, supra, defendant argues that the People have misstated both the law and facts of the case. Defendant avers that the Casey Court never addressed the issue of whether the elements of an offense charged in an accusatory instrument may be established by hearsay statements of an individual testifying about the contents of a record. Rather, the court held that the failure to annex the order of protection to the accusatory instrument did not require reversal as the supporting deposition of the complaining witness demonstrated that she had firsthand knowledge that the order of protection had been granted. As such, the complaining witness' knowledge did not rely on the contents of the order of protection.

In reply, the People reiterate that the instant motion is timely. The People also assert that "the accusatory instrument does not [rely] upon the content of the 911 calls to demonstrate the truth of the content of the calls, but rather, refers to these calls to demonstrate that these calls were made and that certain statement[s] were made during the calls. However, the fact that these calls were made and that certain statements were made during the calls is admissible pursuant to the business record exception to hearsay." Reply Affirmation of ADA Paige Wallace, at 6.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." CPLR 2221(d). "A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.' " Mangine v. Keller, 182 A.D.2d 476, 477 (1st Dept.1992), quoting Foley v. Roche, 68 A.D.2d 558, 567 (1st Dept.1979).

At the outset, this court finds that the instant motion is untimely. A motion for leave to reargue must be made "within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." CPLR 2221(d)(3). The People contend that their time to move for reargument was not triggered as defendant never served them with a copy of the decision with notice of entry. Defendant notes that in arguing that the instant motion is timely, the People rely on civil cases, which are inapposite. Defendant asserts that the First Department has held that in the criminal context, there is no requirement to serve a written order notice of entry as a prerequisite to appeal where the court has ruled orally and thus the order has been entered on the record. People v. Silva, 122 A.D.2d 750 (1st Dept.1986).

Although "the CPLR has no application to criminal actions and proceedings" (Id. at 750 ), several courts have held that that the CPLR may be applied in a criminal action where the CPL is silent on the issue at hand. People v. Ramrup, 47 Misc.3d 1223(A) (Sup Ct, Bronx County 2015) ; People v. Davis, 169 Misc.2d 977 (County Ct, Westchester County 1996) ; People v. Radtke, 153 Misc.2d 554 (Sup Ct, Queens County 1992).

In People v. Walters, 46 Misc.3d 295 (Crim Ct, Bronx County 2014), the defendant sought leave to renew and reargue the court's oral decision seven months after its issuance. The defendant argued that the motion was timely since notice of entry had not been filed. The court expressed concerns regarding "defendant's position and its general [e]ffect on criminal practice. Id. at 297. The court noted the procedural differences between civil practice and criminal practice and held that "when dealing with an oral order in a criminal matter that renders a final order or decision, the renewal and/or reargument time should start from the point the decision and order is made not when reduced to writing." Id. at 298.

This court agrees with the Walters Court, and similarly holds that where a criminal court's oral decision is rendered in open court on the record, the time to move for leave to reargue begins on the date the decision was issued. It bears emphasizing that notice of entry¹ is a creature of civil practice, not criminal practice. In a criminal action, decisions are often made orally from the bench in open court with no requirement for the filing of notice of entry. Given the procedural differences between civil practice and criminal practice, requiring the service of a written copy of an oral decision with notice of entry in a criminal action to trigger the time to move for leave to reargue would be nonsensical. In theory, the time to move for...