Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
The PEOPLE of the State of New York v. Guiyang XU, Defendant.
By motion filed on October 6, 2021, the People move to restore the above-captioned matter to the calendar in the furtherance of justice, previously adjourned in contemplation of dismissal, pursuant to Criminal Procedure Law § 170.55 (2). Defendant, in papers dated October 25, 2021, and supplemental papers dated November 10, 2021, opposes, and seeks 1) an “Urgent Motion to Disregard People's Improper Move to Undo 08/17/2021 Judgement by Ex-Parte Dictatorship”, 2) an order “cancelling a hearing and court appearance on this matter and deciding this matter solely on papers”, and 3) compelling the District Attorney's Office to compensate defendant for his legal fees pursuant to Judiciary Law § 753.
By decision and order dated December 16, 2021, this Court denied the People's motion to restore this matter and each of defendant's applications in their entirety. This expands that decision.
Background and Procedural History
Defendant is charged by misdemeanor complaint with two counts of criminal contempt in the second degree (Penal Law § 215.50 ), a class A misdemeanor, two counts of aggravated harassment in the second degree (Penal Law § 240.30 ), a class A misdemeanor, two counts of aggravated harassment in the second degree (Penal Law § 240.30 ), a class A misdemeanor, and two counts of harassment in the second degree (Penal Law § 240.26), a violation.
These charges stem from events alleged to have occurred on October 19, 2020, and November 24, 2020, inside of 57-05 Lawrence Street, in Queens County. Specifically, on October 19, 2020, at approximately 4:27 PM, defendant allegedly called the complainant, his ex-girlfriend, and said “I will kill you if you go to court, like a nightmare, I will kill you using a knife to slash your face.” Defendant is further alleged to have placed another call to the complainant on November 24, 2020, at approximately 5:36 PM, during which he said “if you are in the house, I can't kill you, but if you are outside the house, I can kill you with a knife.” Both calls were allegedly made in violation of a valid order of protection in effect at the time issued by the Honorable Elisa Koenderman under docket number CR-018508-20QN.
Defendant was subsequently arrested, arraigned and released under supervision on December 3, 2020, along with an order of protection. The matter was adjourned until March 2, 2021, in Part AP-4V for conversion and discovery compliance.
On February 2, 2021, defendant moved under both this docket and docket CR-018508-20QN for an order of protection issued in favor of defendant and against the complainant. Then, on February 26, 2021, defendant moved to dismiss both dockets with prejudice “based upon representations regarding the complainant's character and background.”
On March 1, 2021, the People, off calendar, served and filed both a supporting deposition and misdemeanor certificate of compliance containing a statement of readiness for trial pursuant to CPL § 30.30(5-a). In their statement of readiness, the People certified that all counts currently in the accusatory instrument met the requirements of sections 100.15 and 100.40 of the Criminal Procedure Law, and that any counts not meeting those requirements had been dismissed.
On March 6, 2021, defendant moved under both this docket and docket CR-018508-20QN for an order compelling the People “to provide additional and more legible and clear discovery material.” On April 30, 2021, the People filed papers addressing and opposing defendant's motions.
On June 1, 2021, the Honorable Judge Hartman, by written decision, denied defendant's motions to dismiss and compel, finding he failed to state a basis for relief under CPL § 170.30. Judge Hartman also denied defendant's application for an order of protection. The People, on the record, reaffirmed their readiness for trial indicating they had recent contact with the complainant. Additionally, the court ordered the People and defendant to meaningfully engage in discussions regarding the discovery materials. The matter was then adjourned to July 19, 2021, in Part AP-4V for discovery compliance.
On July 19, 2021, defense counsel appeared via telephone due to technical difficulty. The People maintained their readiness for trial and extended a plea offer of a class A misdemeanor, a conditional discharge, and a final stay-away order of protection. The matter was adjourned to August 17, 2021, in Part T-7, for in-person appearance.
On August 17, 2021, in Part T-7, the standing Assistant District Attorney moved for an adjournment in contemplation of dismissal (ACD) pursuant to CPL § 170.55. Defendant joined in the application and accepted a final stay-away order of protection in the complainant's favor. This Court then allocuted defendant on the terms of both the ACD and order of protection. Later that day, the assigned Assistant District Attorney, along with the Domestic Violence Bureau's Deputy Chief, requested this matter be recalled. Though neither defendant nor defense counsel were present, the People, on the record, explained that the standing assistant district attorney misread the status sheet as “ACD” instead of “A & CD” (i.e., a class A misdemeanor with a conditional discharge). At the People's request, the matter was adjourned to August 31, 2021, and the People were instructed to notify defense counsel.
On August 31, 2021, all parties appeared in Part T-7. At that time, defense counsel filed an “Urgent Motion to Disregard People's Improper Move to Undo 08/17/2021 Judgement by Ex-Parte Dictatorship,” erroneously believing, apparently, that this Court had previously restored the matter to the calendar in counsel's absence and without being heard. This Court clarified for defense counsel that the People, attempting to avoid any improper ex parte communication, requested the matter be recalled on the record to explain what had transpired and seek permission to adjourn the matter for defendant and counsel to appear. To be clear, contrary to defense counsel's uniformed assertion, at no time did the People make any application for relief. Only on this date, for the first time, did the People orally move to restore this matter. This Court then heard brief oral arguments and instructed both parties to file papers briefing their respective positions. The matter was adjourned to November 15, 2021, in Part T-7, for decision.
On October 6, 2021, the People filed this motion formally seeking to restore the above-captioned matter to the calendar in the furtherance of justice pursuant to Criminal Procedure Law § 170.55 (2). In papers filed on October 25, 2021, defendant opposed. On November 10, 2021, defendant filed a second frivolous motion seeking “cancelation of the hearing / court appearance on November 15, 2021”, requesting this motion be decided entirely on papers. As with counsel's previous motion, he was misinformed; the matter had been adjourned for decision, not oral argument. Nevertheless, counsel seeks sanctions, pursuant to Judiciary Law § 753, to the extent that the District Attorney's Office should financially compensate him for “the extra hours required due to motion practice and research.” For the reasons set forth, the People's motion to restore and defendant's motions to disregard judgement by ex parte dictatorship, cancellation of hearing and sanctions are denied.
Restoration of the ACD
Regarding an adjournment in contemplation, Criminal Procedure Law Section 170.55(2) provides in pertinent part,
An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice Upon application of the People the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in the furtherance of justice, and the action must thereupon proceed” (CPL § 170.55 ).
Prior to 1980, a court was obligated to restore an adjournment in contemplation of dismissal to the calendar solely upon the request of the prosecution (see People v. Miterko, 186 Misc. 2d 337, 717 N.Y.S.2d 843 ; People v. Verardi, 158 Misc. 2d 1039, 602 N.Y.S.2d 318 ; People v. Clark, 123 Misc. 2d 674, 474 N.Y.S.2d 409 ; People v. Clark, 120 Misc. 2d 365, 466 N.Y.S.2d 211 ). But as amended, this statute now requires a prosecutor to move the court to do so. Consequently, the People no longer possess the unrestricted ability to restore a case to the calendar; such responsibility now rests with the criminal court (Miterko at 337, 717 N.Y.S.2d 843). The question presented here is whether dismissal of this accusatory instrument would not be in the furtherance of justice and should therefore be restored to the calendar. This Court finds the People's plea offer error, though understandable, fails to demonstrate that the interests of justice require it be restored.
As noted, on August 17, 2021, the People moved in Part T-7 for an application for an adjournment in contemplation of dismissal pursuant to Criminal Procedure Law 170.55. Defendant joined in that application. Regarding the same, the following colloquy occurred:
People: The People are prepared to move for an ACD with a full order of protection.
Defense Counsel: Yes, we have evidence he testified.
The Court: Is that acceptable, ACD and a full order of protection? Is that acceptable, an ACD and a full order of protection?
Defense Counsel: Thank you, Your Honor.
The Court: Is that a yes or no?
Defense Counsel: Yes.
The Court: Sir, your case is adjourned in contemplation of dismissal. You must stay completely out of trouble, lead a law-abiding life, and do not get rearrested. Is this going to be a family or nonfamily, People?
The Court: One year?
The Court: If you abide by a full stay-away order of protection, the case will be dismissed and sealed in one year do you understand?
The Court: The order of protection requires that you stay completely away from the person named in it. No contact or communication whatsoever. Not in person, whether it's at home or otherwise. Not in any other way, whether it's face to face, phone, e-mail, voicemail, text message, Facebook, and social media, either through yourself or through other individuals. Do you understand that?
Defendant: I understand.
The Court: Good luck to you.
Later that afternoon, the People asked for this matter to be recalled on the record.
People: Good afternoon, Judge. It came to our attention about an hour ago that this case was called earlier this morning and an ACD was offered. The offer on the case was actually an A-misdemeanor, conditional discharge and a full order of protection. It was an error. We're going to ask that the case be re-calendared to have the case restored to the calendar with defense counsel present.
The People, in their moving papers, indicate that the standing Assistant District Attorney covering Part T-7 misread the status sheet and offered the ACD in error. Specifically, the People explain that the status sheet read “A/CD/FOOP”, intending to offer a class A misdemeanor with a conditional discharge and a final order of protection. The standing Assistant District Attorney, however, inadvertently misinterpreted the status sheet as an “ACD/FOOP” — meaning an adjournment in contemplation of dismissal with an order of protection. While acknowledging defendant did not violate its terms, the People nevertheless argue that due to the nature of the underlying facts, the interests of justice do not comport with allowing the erroneously offered ACD to stand. In support, they rely on Verardi and Clark as circumstances where an ACD should be restored irrespective of a violation of its terms. Both, however, are inapposite from the instant matter.
In Clark, the court ordered restoration because the defendant procured an ACD by providing phony documents (120 Misc. 2d 365, 466 N.Y.S.2d 211). It is patently obvious that allowing a plea bargain predicated on fraud or deceit would not serve the interests of justice. Here, however, though the People argue that defense counsel should have known the ACD offer was an error as the long-standing unchanged offer had been a plea to the A misdemeanor, it was hardly induced by counsel's fraud, deceit, or trickery. Quite the opposite. It was an offer made by an assistant district attorney in open court. Merely because the assigned prosecutor had neither previously conveyed an ACD nor offered anything other than an A misdemeanor does not mean it cannot change. Indeed, it is not uncommon for an offer to change from one court date to the next even if the original offer had been in place for quite some time. Numerous times during a daily calendar, the People extend generous brand-new offers never previously conveyed—often to defendants with extensive criminal records. And in many instances, the defendant immediately accepts. To infer that under these circumstances, then, that defendant's acceptance was fraudulent or deceitful is preposterous.
The People's reliance on Verardi is also perplexing. First, insofar as defendant's acceptance was neither fraudulent nor deceitful, it did not, as the People claim, vitiate consent; the record unequivocally establishes as much, and no reasonable view suggests otherwise. More significantly, though, the Verardi court explicitly rejected the very argument put forth here: that the prosecutor who offered the ACD was inexperienced and unauthorized to do so (158 Misc. 2d 1039, 602 N.Y.S.2d 318). In fact, in addition to concluding it was not a valid basis to restore, the court also found there was no misunderstanding between the People and the court as to the facts of this case at the time the ACD was granted.
Here, the record clearly reflects that the People communicated to defendant an application for an adjournment in contemplation of dismissal. Upon this Court's inquiry as to whether the charge was a family or non-family offense, which determined the term of the final order of protections, the standing assistant district attorney replied “family.” The ability to have sufficient knowledge of the case such that he accurately responded demonstrates, by itself, there was no misunderstanding between the People and the court.
Finally, the People would have this Court believe a standing assistant district attorney assigned to represent the People in the courtroom on a specific date somehow lacks the authority to speak on their behalf. Aside from requiring a state of suspended disbelief to process such folly, it defies logic and common sense. To assert that somehow the standing assistant district attorney is without authority to represent the assigned assistant district attorney because they are unfamiliar with the intricacies of the case is patently absurd, and one need not have learned Agency Law—a first year law school principle—to recognize this. Concluding otherwise would enable an assigned assistant district attorney to disclaim responsibility for anything and everything a standing assistant does simply because the assigned assistant was unhappy with the result. If true, and it is obviously not, it would create the deceptive contrivance specifically condemned by the Supreme Court in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Perhaps Verardi's only difference is that the prosecutor waited 21 days before raising the issue and moving to restore, hardly a meaningful distinction let alone consequential.
It goes without saying, then, that each assistant district attorney employed by the Queens County District Attorney's Office is presumed to possess the knowledge and information to effectively act on behalf of another assistant district attorney. It is the duty of the attorneys working in the District Attorney's Office to ensure that the left hand knows what the right hand does. A breach of this duty does not—indeed cannot—shift a negative consequence to the defendant who relied on an offer made by the District Attorney's Office. Circumstances will vary, of course, but when a plea rests on a promise, agreement or representation by the District Attorney's Office, and acceptance of that plea was induced by it, such promise must be fulfilled (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 ).
To be fair, a review of the record reflects the standing assistant district attorney made an unfortunate error. Misunderstanding or misreading a status sheet, especially during a heavy, fast-paced calendar, is certainly understandable. But regardless of the reason, no matter how understandable, it cannot be excused. The disposition of a case by a plea offer extended by an assistant district attorney is an indispensable pillar of the criminal justice system. It is untenable to expect every assistant district attorney to personally stand on each of their assigned cases. As such, assistant district attorneys must rely on their courtroom colleagues to act on their behalf with the guidance of their training and information provided by the assigned assistant. Human nature as it is, assistants will inevitably err. Nonetheless, defendants must not bear the cost. It is not, therefore, in the interests of justice for defendant to be deprived of the benefit of an ACD, where he committed no violation of its terms, solely because it was offered in error.
Judiciary Law § 753
Defendant's claim for financial sanctions based on “civil contempt” because the People filed the instant motion is abjectly frivolous. Criminal Procedure Law Section 170.55 (2) specifically entitles them to do so. The merits of it aside, this Court will not entertain imposing sanctions on the People for seeking a statutory remedy available under the Criminal Procedure Law. As such, defendant's motion seeking sanctions and financial compensation by the District Attorney's Office is denied with prejudice.
Based upon the foregoing, the People failed to satisfy their obligation of demonstrating that dismissal of the accusatory instrument would not be in the furtherance of justice. Therefore, it is hereby
ORDERED that People's motion to restore the defendant's case to the calendar is denied and the case remains adjourned in contemplation of dismissal.
It is FURTHER ORDERED that defendant's motion seeking financial sanctions on the District Attorney's Office is denied with prejudice, as are his “Urgent Motion to Disregard People's Improper Move to Undo 08/17/2021 Judgement by Ex-Parte Dictatorship” and “cancelation of the hearing / court appearance on November 15, 2021.”
This constitutes the decision and order of the Court.
David J. Kirschner, J.
Response sent, thank you
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Docket Number: CR-021962-20QN
Decided: December 27, 2021
Court: Criminal Court, City of New York,
Search our directory by legal issue
Enter information in one or both fields (Required)
FindLaw for Legal Professionals
Search our directory by legal issue
Enter information in one or both fields (Required)