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The People of the State of New York v. Mueller, Defendant.
The defense has filed a C.P.L. § 30.30 motion. They argue that the People failed to complete two prerequisite tasks before stating ready for trial: filing a facially sufficient information and filing a proper certificate of discovery compliance. Upon inspecting the information pursuant to the defense's motion, the court gave the parties a further opportunity to focus on whether count two of the information, second-degree harassment, (P.L. § 240.26), was facially sufficient.
The parties then submitted supplemental briefs. The defense notes that the information "fail[s] to include any facts that would constitute physical contact, an attempt at physical contact, or a threat of physical contact." They argue that the information is therefore insufficient to establish second-degree harassment. The People respond that the allegations of a "verbal dispute" and a "taking of [the complainant's] cell phone," which caused her "annoyance and alarm," are sufficient. They also argue that even if the count charging second-degree harassment is facially insufficient, the People's statement of readiness was still valid as to the other count.
Upon considering all the papers submitted, the court grants the motion.
Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have 90 days from filing their complaint to validly state ready for trial. In order to validly state ready for trial, the People must first file a facially sufficient information. (People v. Colon, 59 NY2d 921 ; People v. Maslowski, 187 AD3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021]).
An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offense. (People v. Sanson, 59 Misc 3d 4, 6 [App. Term, 2d Dep't 2018]; see also C.P.L. §§ 100.40[c]; 100.15; People v. Sumter, 151 AD3d 556, 558 [1st Dep't 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]). This standard is also called a "prima facie" case. (People v. Alejandro, 70 NY2d 133, 138 ). The prima facie standard is "necessary because of the 'unique function that an information serves' " under our criminal procedure law. (People v. Parsons, 69 Misc 3d 11, 14 [App. Term, 1st Dep't 2020] [quoting Alejandro, 70 NY2d at 137]). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which the People "need not, at any time prior to trial, present actual evidence." (Alejandro, 70 NY2d at 137-38 [internal citations omitted]). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. So long as the factual allegations "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (Sanson, 59 Misc 3d at 6 [internal quotation marks omitted]).
Before the 2020 reforms to the criminal procedure law, the People were permitted to treat each count of an information as a separate "information." (See People v. Brooks, 190 Misc 2d 247 [App. Term, 1st Dep't 2001]). As a result, if one count of an information were facially insufficient, that would not affect the People's readiness on a second, facially sufficient count. (See id. at 249). This doctrine was called "partial conversion."
The 2020 reforms abrogated this doctrine. They included C.P.L. § 30.30[5-a], which now explicitly requires the People to certify that "all counts" are facially sufficient before their statement of readiness may be "valid." Otherwise, "a statement of readiness shall not be valid." (C.P.L. § 30.30[5-a]). Therefore, it is now the People's burden to "prove the sufficiency of each count of the information" to validly state ready. (People v. Ramirez-Correa, 71 Misc 3d 570, 574-75 [Crim. Ct., Queens County 2021]).
As C.P.L. § 30.30[5-a] plainly "mandates that a statement of readiness is only valid when all charges in an accusatory instrument are facially sufficient," this court follows the statute's plain text. (See People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023] [doing the same]). A statute's plain text is "the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning." (Daimler-Chrysler Corp. v. Spitzer, 7 NY3d 653, 660 ).
In fact, the plain text here accords with the legislative intent of the statute. (See Matos, 180 N.Y.S.3d at 893 [discussing the legislative history]; see also People v. Saavedra, 76 Misc 3d 626, 631 [Crim. Ct., Bronx County 2022]). Criminal Procedure Law § 30.30[5-a] was "designed to abrogate decisional law that authorized the prosecution to answer 'ready for trial' " on an information that was only facially sufficient as to some of the charges. (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 30.30). Effectuating that intent, "partial conversion or readiness [is] no longer available under the changes made to the applicable statutes effective January 1, 2020." (People v. Jackson, 74 Misc 3d 1224[A], at *5 [Crim. Ct., NY County 2022]; see, e.g., People v. Herrera, 73 Misc 3d 334 [Crim. Ct., Bronx County 2021] [same]; People v. Young, 72 Misc 3d 1203[A], at *3 [Crim. Ct., NY County 2021] [same]).
Therefore, from both plain text and context, it is now a "pre-requisite to a valid statement of readiness that an accusatory instrument is facially sufficient as to all charges." (Matos, 180 N.Y.S.3d at 893).
Accordingly, the court turns to the count charging second-degree harassment. (C.P.L. § 246.20). A person commits that offense when, "with intent to harass, annoy or alarm another person," "[h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." Here, the information alleges, in full:
Deponent states that he is informed by the complainant that at that above mentioned date, time, and place of occurrence, the defendant, [Mr.] Mueller, engaged in a verbal dispute.
Deponent is further informed by the complainant that during said dispute the defendant removed her i-Phone 13 from on top of the mailbox outside of the above location.
Deponent is further informed by the complainant that she is the legal custodian of the above mentioned i-Phone 13 and the defendant did not have permission or authority to take, remove, use, or otherwise exercise control over said phone.
Deponent is further informed by the complainant that the above mentioned actions of defendant caused her annoyance and alarm.
Information at 1-2.
The People argue that these allegations are facially sufficient to establish second-degree harassment. They assert that "[t]he actions of the verbal dispute and the taking of [the complainant's] cell phone caused her annoyance and alarm." (Pr. Resp. at 4). "Though not every specific action was addressed in the complaint," they argue, "the above actions contained in the complaint and the totality of the circumstances surrounding the taking of the phone rise to the level of harassment." (Id.).
The court disagrees. "In order to be facially sufficient, an accusatory instrument charging the offense of harassment in the second degree (Penal Law § 240.26) must establish that the defendant struck, shoved, kicked, or otherwise subjected another person to physical contact, or attempted or threatened to do the same, and did so with the intent to harass, annoy or alarm the other person." (People v. Canjura, 46 Misc 3d 66, 69 [App. Term, 2d Dep't 2014]). Here, the information is devoid of any facts establishing any attempted, threatened, or completed physical contact. The phone was allegedly taken "from on top of [a] mailbox." There is no way to construe the information to contain even a hint of attempted, threatened, or completed physical contact with another person.
Perhaps expecting this result, the People next invite the court to disregard the plain text, and context, of C.P.L. § 30.30[5-a]. Echoing the abrogated "partial conversion" doctrine, they ask the court to "maintain the remaining count[ ]" and uphold "the validity of the People's statement of readiness" as to it. (Pr. Supp. Resp. at 4). Citing C.P.L. § 170.35[a], they argue that the Legislature did not intend to prevent the dismissal of a defective count without dismissing an entire information. (Id. at 5). That provision indeed provides for dismissal of "[a]n information . . . or a count thereof" when it is "not sufficient on its face." (C.P.L. § 170.35[a]).
The People conflate two separate kinds of motions to dismiss under the criminal procedure law. It is true that under C.P.L. § 170.35[a], a simple motion to dismiss for facial insufficiency may be granted as to only one count. In that situation, a facially insufficient count does not require dismissing an entire information. (And indeed, the People are free to file a new accusatory instrument after such a dismissal.) But the defense's motion here is not simply one to dismiss for facial insufficiency. It is a motion to dismiss under C.P.L. § 30.30, alleging that the People failed to validly state ready for trial within 90 days of arraignments. The reason it alleges the People's readiness was never effective was their failure to file a fully facially sufficient information during that entire time. As a result, C.P.L. § 170.35[a] is not in conflict with C.P.L. § 30.30[5-a]. The former is about simple motions to dismiss for facial sufficiency; the latter is about readiness and bears consequence for § 30.30 motions.
In any event, the plain text and context of C.P.L. § 30.30[5-a] make clear that its purpose is to abrogate the very partial conversion doctrine that the People still champion. (See Hon. William C. Donnino, Practice Commentaries, C.P.L. § 30.30; see also Matos, 180 N.Y.S.3d at 893 [discussing the legislative history]). If the court accepts the People's invitation to re-implement partial conversion, it will effectively override a duly enacted statute by judicial fiat. But it is the province and duty of a judge to say what the law is, not what they think the law should be. And the law is that:
Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.
(C.P.L. § 30.30[5-a] [emphases added]). To certify means to "confirm" or to "attest as being true." (Certify, Merriam-Webster Dictionary ). The People failed to certify the facial sufficiency of all counts in this case. One count was facially insufficient, and the People cannot "certify" a statement that is false. Therefore, their statement of readiness was not valid. (See C.P.L. § 30.30[5-a] ["a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts" are facially sufficient] [emphasis added]).
As a result, the People never validly stated ready for trial in this case. From the filing of the accusatory instrument, over 90 days have elapsed without a valid statement of readiness. The People raise no periods of time that are excludable under C.P.L. § 30.30. Accordingly, the case must be dismissed. (C.P.L. § 30.30[b]).
The defense's remaining arguments are moot.
The foregoing constitutes the order and decision of the court.
Dated: March 9, 2023
Wanda L. Licitra, J.C.C.
Wanda L. Licitra, J.
Response sent, thank you
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Docket No: Docket No. CR-017856-22QN
Decided: March 09, 2023
Court: Criminal Court, City of New York.
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