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The PEOPLE of the State of New York v. SAAVEDRA, Defendant.
The People commenced this case by filing a misdemeanor complaint, an accusatory instrument that contained unsworn hearsay allegations. Eighty-eight days later, off calendar, the People filed and served a “superseding information” and a notice of readiness. However, this purported superseding information contained two counts that were not yet “converted”—i.e., those counts still relied upon unsworn hearsay allegations. In their notice of readiness, the People announced that they were “moving to dismiss” the unconverted counts. In the same notice, they simultaneously claimed to “certify” that the unconverted counts “have been dismissed.”
The defense has now filed a C.P.L. § 30.30 motion to dismiss, arguing that the People's only statement of readiness before the 90-day speedy-trial deadline was invalid. They make two arguments. First, that the “superseding information” was actually a superseding complaint, which is an unauthorized instrument that cannot support a valid statement of readiness. Second, that even if the Court accepts the partially converted “superseding information,” the People may not validly state ready on a partially converted instrument.
The Court agrees with both arguments. The motion is GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
On October 1, 2021, at Mr. Saavedra's arraignment, the People filed a misdemeanor complaint against him. That complaint charged him with two counts of third-degree assault and two counts of second-degree harassment. The complaint was sworn by a police officer, who wrote that he was “informed” by two unsworn witnesses: Mr. Morelos and Mr. Briones. Each unsworn witness alleged facts supporting one count of each of the charged offenses. The court adjourned the case to November 9, 2021, for the People to “convert” the accusatory instrument, file a certificate of discovery compliance, and state ready for trial. On November 9, 2021, the People had none of those documents and did not state ready. The court adjourned the case for the same purposes to January 11, 2022.
Off-calendar, on December 28, 2021, the People filed and served what they claimed to be a superseding information, a certificate of discovery compliance, and a notice of readiness. Like the complaint before it, this new accusatory instrument charged Mr. Saavedra with two counts of third-degree assault and two counts of second-degree harassment. However, unlike the complaint before it, the new instrument was sworn by Mr. Briones and alleged sworn facts to support two of the charged counts. Still, Mr. Briones wrote that he was “informed” by hearsay allegations from Mr. Morelos regarding the other two counts. In sum, the document contained sworn allegations to support two of the counts, but not the two others.
The People's accompanying off-calendar December 28, 2021, notice of readiness contained three statements. First, it said, “the People of the State of New York are ready for trial in the above-mentioned case.” Second, it said, “the People of the State of New York are moving to dismiss one count of Assault in the third degree and one count of Harassment in the second degree for informant [Mr.] Morelos and certify that all remaining counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of the Criminal Procedure Law and, if applicable, those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.” Third, it said, “the People of the State of New York request that this matter be advanced to the next date the court is available to make its record inquiry of the People's readiness as set forth in CPL § 30.30(5).”
On January 11, 2022, the defense challenged the People's statement of readiness and requested this motion schedule.
The Criminal Procedure Law provides for various accusatory instruments with which the People can commence an action in local criminal court. Those are an information, a simplified information, a prosecutor's information, a felony complaint, and a misdemeanor complaint. (C.P.L. § 100.05). A misdemeanor complaint may charge a person with offenses upon hearsay allegations. (See C.P.L. § 100.40). In contrast, an information requires “[n]on-hearsay allegations” to establish the charged offenses. (C.P.L. § 100.40[c]). The Criminal Procedure Law allows the People to file a superseding instrument to replace a misdemeanor complaint. (See C.P.L. §§ 170.65, 100.50).
Courts have long split over whether the Criminal Procedure Law allows the People to supersede a misdemeanor complaint with an instrument that itself also contains unconverted counts. Several courts have held that it does not. (E.g., People v. Diaz, 63 Misc. 3d 1211[A], at *4, 2019 WL 1497137 [Crim. Ct., Bronx County 2019] [Ally, J.]; People v. Simmons, 62 Misc. 3d 1205[A], at *3, 2018 WL 6933766 [Crim. Ct., Kings County 2018] [Petersen, J.]; People v. Severino, 47 Misc. 3d 1229[A], at *2-*3, 2015 WL 3650049 [Crim. Ct., N.Y. County 2015] [Statsinger, J.]; People v. Gibbs, 35 Misc. 3d 1244[A], at *2, 2012 WL 2207136 [Sup. Ct., Bronx County 2012] [Fabrizio, J.]). Others have held that it does. (E.g., People v. Rivera, 41 Misc. 3d 1205[A], at *3 n.1, 977 N.Y.S.2d 669 [Crim. Ct., Bronx County 2013] [Wilson, J.]; People v. Mezar, 40 Misc. 3d 1240[A], at *1-*2, 2013 WL 5034500 [Crim. Ct., Kings County 2013] [Gerstein, J.]; People v. Cameron, 25 Misc. 3d 1230[A], at *4, 2009 WL 4016653 [Crim. Ct., Kings County 2009] [Kalish, J.]).
This Court agrees with those cases holding that the Criminal Procedure Law only allows the People to supersede a complaint with a fully converted information. A misdemeanor complaint “must” be supplemented by a supporting deposition or “replaced by an information.” (C.P.L. § 170.65). An “information,” distinct from a complaint, requires “[n]on-hearsay” allegations sufficient to establish the offenses. (C.P.L. § 100.40[c]). Nowhere in the Criminal Procedure Law does any provision allow a misdemeanor complaint to replace another misdemeanor complaint. A misdemeanor complaint may only be filed to commence an action—it cannot be filed once an action has already been commenced. (See C.P.L. §§ 100.05; 170.65).
The cases that accept misdemeanor complaints as superseding instruments are in error. They improperly conflate the “partial conversion” doctrine with the separate question of whether such instruments were valid filings in the first place. When those cases were decided, the partial conversion doctrine allowed the People to state ready for trial on converted counts while remaining not ready on unconverted counts. (See People v. Brooks, 190 Misc. 2d 247, 249, 736 N.Y.S.2d 823 [App. Term, 1st Dep't 2001]). However, this doctrine never concerned what instruments could supersede a misdemeanor complaint. (Gibbs, 35 Misc. 3d 1244[A], at *2, 954 N.Y.S.2d 761). Instead, it only concerned whether the People could partially convert counts on a complaint that was already filed. (Id.).
Here, the People's superseding instrument contained hearsay and was therefore a misdemeanor complaint that could not and did not replace the first misdemeanor complaint. As a result, “the People's attempt to supersede the misdemeanor complaint with an accusatory instrument containing uncorroborated hearsay, another misdemeanor complaint, is a nullity.” (Id.; see also Severino, 47 Misc. 3d 1229[A], at *3 [“Thus, while the issue arises infrequently, superseding complaints are generally dismissed as a nullity.”]; Diaz, 63 Misc. 3d 1211[A], at *4 [“The instrument ․ is thus a superseding complaint and therefore a nullity.”].
Therefore, the first misdemeanor complaint is the only valid accusatory instrument that was ever filed in this case. The People cannot state ready for trial on such an instrument. Accordingly, the C.P.L. § 30.30 clock ran from arraignments on October 1, 2021, to the date the defense requested a motion schedule, January 11, 2022. That is 102 days, more than the 90 days allowed by C.P.L. § 30.30[b]. For this reason alone, the motion to dismiss must be granted.
But in addition, even if the People's superseding instrument were considered valid, it would not change the outcome of this speedy-trial motion. As of January 1, 2020, the People may only state ready for trial—which is what stops the speedy-trial clock—if they first fully convert the accusatory instrument to an information. (C.P.L. § 30.30[5-a]). Indeed, before stating ready, the People must certify that all counts are converted and those counts that are not converted “have been dismissed.” (Id.). This rule was “designed to abrogate” the older partial conversion doctrine “that authorized the prosecution to answer ‘ready for trial’ on an accusatory instrument ․ that had been converted to an information as to some but not all of the charges.” Hon. William C. Donnino, Supplementary Practice Commentaries § 30.30.
Here, when the People filed their off-calendar notice of readiness, the unconverted counts had not been dismissed. In that off-calendar notice, the People said they were “moving to dismiss” the unconverted counts and then unilaterally declared that those counts “have been dismissed.” But “[t]he People do not have the authority to merely state that a misdemeanor count is dismissed.” (People v. Tebeje, 161 Misc. 2d 440, 443, 613 N.Y.S.2d 577 [Crim. Ct., Bronx County 1994] [Webber, J.]). “In order to dismiss a misdemeanor count, the People must make a formal motion in open court to dismiss a particular count.” (Id.). “Upon such a motion by the People, it is the court which dismisses the count.” (Id.). The People did not actually move to dismiss the unconverted counts until the open-court appearance on January 11, 2022.
Moreover, the People's declaration in their notice of readiness was not itself a motion. It was “not accompanied by any notice of motion, did not contain any return date, and the court did not set a motion schedule.” (People v. Thomas, 59 Misc. 3d 64, 66, 75 N.Y.S.3d 777 [App. Term, 1st Dep't 2018]). Therefore, “no motion was actually made” on that off-calendar date. (Id.). Moreover, while the People included a boilerplate “request” that the matter “be advanced to the next date the court is available to make its record inquiry of the People's readiness,” the People never actually advanced the case and did not actually make a motion to dismiss the counts until January 11, 2022.
As a result, even if the Court accepted the superseding instrument as valid, the People's statement of readiness would still have been invalid. It was made on an instrument containing unconverted counts that had not yet been dismissed. The declaration of a future motion to dismiss had no effect. The C.P.L. § 30.30 “statute contemplates an indication of present readiness, not a prediction or expectation of future readiness.” (People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 ). Because these unconverted counts were not yet dismissed, the statement of readiness violated C.P.L. § 30.30[5-a]. The clock again would have run from arraignments on October 1, 2021, to the date the defense requested a motion schedule, January 11, 2022. That is, again, 102 days, more than the 90 days allowed by C.P.L. § 30.30[b]. Under this reasoning, as well, the motion is granted.
The defense's remaining arguments and motions are moot.
The foregoing constitutes the Decision and Order of the Court.
Wanda L. Licitra, J.
Response sent, thank you
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Docket No: Docket No. CR-014883-21BX
Decided: August 02, 2022
Court: Criminal Court, City of New York,
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