People v. Zisis

Decision Date21 April 1982
Citation113 Misc.2d 998,450 N.Y.S.2d 655
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Alex ZISIS, Defendant.
CourtNew York City Court

Robert M. Morgenthau, Dist. Atty., New York County, New York City (James M. McGuire of counsel), for the People.

Ferrara & Campriello, New York City (Austin V. Campriello, New York City, of counsel), for defendant.

DANIEL P. FITZGERALD, Judge:

Defendant moves for an order dismissing the information pursuant to CPL 170.30(1)(e) for failure by the People to be ready for trial within the time constraints of CPL 30.30. Additionally and in the alternative, defendant renews his earlier motion for discovery (CPL 240.40).

Defendant was arrested on April 20, 1981 and charged initially with assault in the second degree, a class D felony (Penal Law, § 120.05). The following day, April 21, that charge was reduced to the current charge of assault in the third degree, a class A misdemeanor (Penal Law, § 120.00). On that date, the accusatory instrument was in the form of a misdemeanor complaint, and a schedule was set for defendant's motions. Those motions were not fully decided until November 12. On December 3, the misdemeanor complaint was converted into an information.

The People's Readiness for Trial

Defendant contends that until a misdemeanor complaint is converted to an information the People are unable to communicate their readiness for trial. Further, unless the People can show that the period of delay before conversion actually prevented the People from converting the accusatory instrument into an information, that period of time cannot be considered as excludable time (CPL 30.30). Rather, that time should be chargeable to the People. Since more than the permitted 90 days elapsed (CPL 30.30) between arraignment on the misdemeanor complaint and conversion to an information, and since the People were not prevented from converting to an information during that time, defendant contends this action must be dismissed.

Defendant relies on People v. Sturgis, 38 N.Y.2d 625, 629, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1975) and its progeny. In Sturgis, the issue was whether a period of slightly more than three months while the defendant was absent from court was an excludable period of time not to be charged to the People. The court held it was not excludable. During the period of defendant's absence, the accusatory instrument remained as a felony complaint. The court held that the defendant's absence did not prevent the People from presenting the case to the Grand Jury to get an indictment. 1

Clearly in felony cases, until an indictment is returned, the People are not in a position to answer that they are ready for trial. An indictment is the only method of prosecuting an offense in a superior court (except for prosecution on a superior court information if defendant waives prosecution by indictment ). Prior to the finding of an indictment, the People are not permitted to exclude any chargeable time unless they can show that they were actually prevented or delayed from seeking an indictment by one of the events listed in subdivision 4 of CPL 30.30. Sturgis stresses the causality explicit in that subdivision (People v. Sturgis, supra, at 628, 381 N.Y.S.2d 860, 345 N.E.2d 331).

Defendant contends an inflexible analogy exists between an indictment in a felony case and an information in a misdemeanor prosecution. Therefore, he argues, none of the events listed in subdivision 4 of CPL 30.30 should operate to exclude time chargeable to the People unless a delay resulting from one of those events actually prevented the People from filing a misdemeanor information. And both parties in the instant action agree that none of the events listed in subdivision 4 of CPL 30.30 prevented or delayed the People from filing an information.

This analogy and theory were generally considered to be correct by the nisi prius courts 2--at least until the affirmance in People v. Callender, 101 Misc.2d 958, 422 N.Y.S.2d 611, affd. 112 Misc.2d 28, 448 N.Y.S.2d 92 (App.Term, 1st Dept.), mot. for lv. to app. den. 55 N.Y.2d 880, 448 N.Y.S.2d ----, 433 N.E.2d 540 (1982).

In People v. Callender, supra, some 80 days had elapsed between arraignment on a misdemeanor complaint and conversion into an information. The defendant in Callender, relying on People v. Sturgis, supra, contended, as does the defendant in the case at bar, that all time from the arraignment on the misdemeanor complaint to the filing of the information is chargeable to the People within the meaning of CPL 30.30 since nothing the defendant did prevented the filing of an information. The court rejected this argument and held that "since a misdemeanor action proceeds in its pretrial stages in the same fashion regardless of whether the accusatory instrument is an information or a complaint, the failure of the People to convert from a complaint to an information at the inception of the proceeding will not generally contribute to delay or impede the People's ability to answer ready for trial." (People v. Callender, supra, 112 Misc.2d 28, 28-29, 448 N.Y.S.2d 92). The court also held that this conversion can take place at any reasonable time before trial, including even the day before (id.). 3 The lower court distinguished People v. Sturgis, supra, and thereby distinguished the treatment of felonies and misdemeanors under CPL 30.30. It agreed that a misdemeanor information is similar to an indictment in that, absent a waiver, it is the only misdemeanor accusatory instrument which can serve as the basis for trial (see CPL 100.10 and cf. CPL 100.10). But while a superior court does not acquire any jurisdiction over a felony until there has been an indictment, a local criminal court acquires preliminary jurisdiction over a misdemeanor with the filing of a misdemeanor complaint since that court has the ultimate jurisdiction to try the action (People v. Callender, supra, 101 Misc.2d at 961, 422 N.Y.S.2d 611). Since the misdemeanor complaint commenced the action in the proper trial court, all that was required for the People to answer ready for trial was the filing of a supporting deposition to convert the complaint to an information (id. at 958, 962, 422 N.Y.S.2d 611). The court treated this filing as something akin to a ministerial act.

But as support for the holding that a misdemeanor proceeds towards trial in the same fashion whether as a complaint or an information, the court relied on the proposition that the time within which defendant is required to make all pretrial motions is the same regardless of the form of the accusatory instrument.

It was this proposition that weakened Callender as precedent. The time frame within which Callender spoke was prior to January 1, 1980. Prior to that date it was indeed considered a correct proposition. But on January 1, 1980, CPL Art. 240 changed and explicitly stated that discovery proceedings on a misdemeanor are available only to a defendant against whom an information is pending; it does not provide for discovery on a misdemeanor complaint. It is true that many other motions are available to a defendant charged only on a misdemeanor complaint. 4 Yet the change in CPL Art. 240 is a significant, qualitative change frequently requiring an early information. Discovery is a logical first step for a defendant; the discovery received assists the defendant to particularize the facts supporting other motions. And when the discovery is received early on a misdemeanor information, it avoids the need to renew motions first made on a misdemeanor complaint if the charges or gravamen are changed when the complaint is converted into an information. The change in CPL Art. 240 significantly altered how a misdemeanor should logically proceed towards readiness for trial. The insistence in People v. Sturgis, supra, that the trial instrument be in existence early in the proceedings and that delay in getting it into existence be charged to the People seemed a viable rationale when applied to a misdemeanor as well as a felony. For this reason, the affirmance of People v. Callender, supra, appeared to have little precedential value.

However, in March of this year, the Appellate Term reversed People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305 (1981), 112 Misc.2d 790, revd. 450 N.Y.S.2d 136 (App.Term, 1st Dept.). The lower court had applied the Sturgis rationale to misdemeanor cases. More importantly, the time period involved in that case was after January 1980 and the change in CPL Art. 240. But the Appellate Term quoted liberally from Callender and reaffirmed the principles stated in that case. Therefore, the current law in this Department is that misdemeanor cases are to be treated differently from felonies under CPL 30.30, and that misdemeanors proceed towards trial in the same fashion whether in complaint or information form. The failure of the People to convert to an information at the inception of the proceeding will not generally contribute to delay or impede the People's ability to answer ready for trial, and unlike felonies, the causality of the delay resulting from the events listed in subdivision 4 of CPL 30.30 is without effect when applied to the People's ultimate obligation to convert the complaint to an information (People v. Colon, supra ).

Applying these principles to the instant action, I am constrained to find that only 38 days are properly chargeable to the People under CPL 30.30(1).

The defendant was arraigned on a felony complaint on April 20, 1981 and on April 21, after the charges were reduced, he was arraigned on the misdemeanor complaint. Contrary to defendant's contention, the day in between is not chargeable to the People (CPL 30.30). On that day, a motion schedule was set by the court, defendant was to serve his motions by May 5, and the People were to respond by May 18. This period of time is excludable (CPL 30.30). However, the People did not...

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3 cases
  • People v. Arturo
    • United States
    • New York City Court
    • 6 Febrero 1984
    ...in effect, a nullity. (See People v. Webb, 105 Misc.2d 660, 432 N.Y.S.2d 826; see also J. Fitzgerald's reasoning in People v. Zisis, 113 Misc.2d 998, 1004, 450 N.Y.S.2d 655.) I am aware that current practice in this court is to permit a defendant to move for discovery prior to conversion bu......
  • People v. Ranieri
    • United States
    • New York City Court
    • 6 Febrero 1985
    ...is chargeable to the People so long as the defendant appears. See People v. Webb, 105 Misc.2d 660, 432 N.Y.S.2d 826; People v. Zisis, 113 Misc.2d 998, 1004, 450 N.Y.S.2d 655; People v. Arturo, 122 Misc.2d 1058, 472 N.Y.S.2d 998; CPL Section 240.20. Defendant should not be penalized for effo......
  • People v. Radus
    • United States
    • New York City Court
    • 7 Marzo 1985
    ... ... The record is clear that the People concede they were never ready to proceed with a preliminary hearing, no less to trial. "Clearly in felony cases, until an indictment is returned, the People are not in a position to answer that they are ready for trial." People v. Zisis, 113 Misc.2d 998, 999, 450 N.Y.S.2d 655 (1982) ...         The People contend that the Defendant is chargeable with any delays that the defense requested or consented to. We do not need to reject this general theory in this case as we are only able to find support for same in ... ...

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