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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Appellant, v. Debra Easley BROOKS, Respondent.

Decided: October 25, 2001

Present:  WILLIAM P. McCOOE, J.P., WILLIAM J. DAVIS and LUCINDO SUAREZ, Justices. Robert T. Johnson, District Attorney of Bronx County (Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for appellant. Edward M. Kratt, New York City, for defendant.

Order entered May 25, 1999 (Edgar G. Walker, J.) reversed, on the law, motion denied, information reinstated and the matter remanded for further proceedings.

The chronology of events relevant to defendant's CPL 30.30 motion is summarized as follows.   On November 15, 1998 defendant was charged with several misdemeanors and lesser offenses, including criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), assault in the third degree (Penal Law § 120.00[1] ), and criminal impersonation in the second degree (Penal Law § 190.25[3] ), upon allegations that she struck the complainant with a metal “club” and then falsely represented herself to be a police officer.   At defendant's arraignment on November 16, 1998, the People filed a supporting deposition and stated their readiness, to the apparent satisfaction of both defense counsel and the court.   The matter was adjourned to December 17, 1998, with defense counsel participating in and proposing the choice of date.   On the December 17 adjourn date, after the People again announced their readiness, defense counsel argued, for the first time, that the accusatory instrument contained hearsay and required a further “corroborating affidavit” with respect to the criminal impersonation charge, since “no grounds [were provided] for the assertion ․ that the defendant is not employed by the New York City Police Department as a ․ police officer.”   In response, the prosecution maintained that the accusatory instrument constituted a valid information with respect to the criminal impersonation charge because the arresting police officer had “firsthand knowledge” that the defendant “was not a fellow police officer”.   The Calendar Judge agreed with defendant's argument and, upon ascertaining that the People would need “one week”, adjourned the case to February 3, 1999 to allow the People to file a “superceding information” on the criminal impersonation charge.   The matter was adjourned from February 3, 1999 to February 26, 1999, after the People requested an additional “one week” period to file the superceding information previously required by the court.   The People moved to dismiss the criminal impersonation charge on the February 26 adjourn date, and defendant's speedy trial motion ensued.   Criminal Court granted the motion upon its determination that the entire 102-day period between arraignment and dismissal of the criminal impersonation charge was chargeable to the People, a determination apparently premised on the court's holding that the November 16, 1998 record readiness statement by the People was a “nullity” because there was then no “valid accusatory instrument”.   On the People's appeal, we reverse and deny defendant's speedy trial motion.

 We note as a threshold matter that defendant's hearsay challenge to the criminal impersonation count of the information should have been raised by way of a formal motion to dismiss that count (see, CPL 170.35;  People v. Casey, 95 N.Y.2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233), a procedure which, of course, would have triggered the motion practice exclusion of CPL 30.30(4)(a).   Even accepting the defendant's informally advanced claim that the criminal impersonation charge was insufficiently pleaded (compare, Matter of Rodney J., 83 N.Y.2d 503, 507-508, 611 N.Y.S.2d 485, 633 N.E.2d 1089, with Matter of Edward B., 80 N.Y.2d 458, 462-464, 591 N.Y.S.2d 962, 606 N.E.2d 1353;  see, People v. Casey, supra, 95 N.Y.2d, at 361-362, 717 N.Y.S.2d 88, 740 N.E.2d 233), we reject defendant's CPL 30.30 argument as contrary to settled speedy trial principles.   First, neither the terms of CPL 30.30 nor its interpretative case law imposes any requirement upon the prosecution to obtain an accusatory instrument sufficient for trial before claiming the exclusion of delays occasioned by adjournments requested or consented to by the defendant (see, CPL 30.30[4][a], [b];  People v. Worley, 66 N.Y.2d 523, 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228).   The record demonstrates that the 31-day adjournment period from November 16, 1998 to December 17, 1998 should have been excluded as an adjournment on consent, in which defense counsel actively participated in setting the adjourned date (see, People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403;  People v. Acosta, 249 A.D.2d 161, 674 N.Y.S.2d 2, lv. denied 92 N.Y.2d 892, 680 N.Y.S.2d 56, 702 N.E.2d 841).

 Further, even apart from the issue of consent, the adjournment period was excludable since the People's November 16 record statement of readiness to proceed to trial was effective to stop the “speedy trial” clock and was not, contrary to defendant's claim, a “nullity”.   The counts of the accusatory instrument pertaining to the weapon possession and related charges now pending were “deemed” converted to an information on November 16 (see, CPL 170.65[1] ), and no basis is shown to conclude that the People were not then actually ready to proceed on those charges (see, People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287;  People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35).   Any perceived pleading defect relating to the subsequently dismissed criminal impersonation charge did not serve to vitiate the People's otherwise valid readiness statement relating to the properly pleaded weapon possession and satellite charges that undisputedly rested entirely on nonhearsay allegations (see, People v. Dion, 93 N.Y.2d 893, 689 N.Y.S.2d 685, 711 N.E.2d 963;  People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897, lv. denied 74 N.Y.2d 666, 543 N.Y.S.2d 409, 541 N.E.2d 438;  People v. Hansen, N.Y.L.J., August 3, 1999, at 22, col. 1 [App.Term, 1st Dept.];   see also, People v. Ortiz, 209 A.D.2d 332, 334, 619 N.Y.S.2d 12, lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716;  People v. Chavys, 129 A.D.2d 723, 514 N.Y.S.2d 486;   People v. Papa, 96 A.D.2d 601, 465 N.Y.S.2d 295;  People v. Gonzalez, 168 Misc.2d 136, 645 N.Y.S.2d 978, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 170, 670 N.E.2d 454).   Put differently, the jurisdictional challenge to the criminal impersonation count subsequently advanced by defendant and summarily adopted by the motion court did not alter the adjournment already granted, or responsibility for the delay necessitated thereby.

 We do not share the concerns expressed in the concurring opinion over what it characterizes as the prosecution's “piecemeal” approach to answering ready on a “hybrid” or “partially converted” information.   These concerns appear to stem from the concurrer's view that a defect in one count of a multicount accusatory instrument renders the entire instrument jurisdictionally infirm.   Such an all or nothing approach is incompatible with the settled rule, “applicable to many phases of the criminal law” (People v. Gulston, 181 Misc.2d 644, 648, 695 N.Y.S.2d 888), that each count of an accusatory instrument “is deemed as a matter of law to be a separate and distinct accusatory instrument” (People ex rel. Ortiz v. Commissioner of N.Y. City Dept. of Correction, 253 A.D.2d 688, 689, 678 N.Y.S.2d 91, affd. 93 N.Y.2d 959, 694 N.Y.S.2d 340, 716 N.E.2d 175;  see, Selvester v. United States, 170 U.S. 262, 267, 18 S.Ct. 580, 42 L.Ed. 1029;  People v. Sciascia, 268 App.Div. 14, 15, 48 N.Y.S.2d 428, affd. 294 N.Y. 927, 63 N.E.2d 118;  People v. Delorio, 33 A.D.2d 350, 353, 308 N.Y.S.2d 131).   The common practice of giving individual speedy trial treatment to discrete counts of an information is consistent with this general principle, is expressly authorized by statute (see, CPL 170.30[1][e] [court may dismiss information “or any count thereof” on speedy trial grounds] ), and is recognized approvingly in our speedy trial jurisprudence.

Instructive on this point is People v. Dion, 93 N.Y.2d 893, 689 N.Y.S.2d 685, 711 N.E.2d 963, supra.   The criminal action therein commenced on March 13, 1996, upon charges of third-degree criminal mischief, a class E felony (Penal Law § 145.05) and petit larceny, a class A misdemeanor (Penal Law § 155.25).   The prosecution in Dion announced its readiness on the record on May 14, 1996, and contemporaneously moved to reduce the felony charge of third-degree criminal mischief to the class A misdemeanor charge of fourth-degree criminal mischief (Penal Law § 145.00).   No such reduction was accomplished at that time, however, because of the trial court's failure to conform to the requirements of CPL 180.50.   The originally pleaded felony charge in Dion was not properly reduced until October 15, 1996, more than six months after commencement of the action.   The defendant in Dion sought dismissal under CPL 30.30 on much the same basis as does the defendant in the case now before us-that the People did not (and could not) make a timely assertion of their readiness for trial in view of the pendency of the tainted third-degree criminal mischief (here, second-degree criminal impersonation) charge.   The Court of Appeals flatly rejected defendant's CPL 30.30 claim, with language strongly supporting, if not expressly recognizing the “severability” concept here at issue:  “[W]hen the People answered ready on May 14, 1996, their readiness included the misdemeanor charge of petit larceny.   That unreduced charge was unaffected by the procedural mechanics of CPL 180.50.”  (People v. Dion, supra, 93 N.Y.2d, at 894, 689 N.Y.S.2d 685, 711 N.E.2d 963.)   Similarly, in the matter now before us, the People's November 16, 1998 readiness statement included the weapon possession and related charges now pending, charges which were “unaffected” by the court's narrow jurisdictional ruling targeted only to the ultimately abandoned criminal impersonation charge.

A similar analysis applies to and requires the exclusion of the 48-day adjournment from December 17, 1998 to February 3, 1999.   When the People answered ready on December 17, 1998, their readiness encompassed the weapon possession and related charges still extant, charges which were “unaffected” by any perceived pleading problems relating solely to the subsequently dismissed criminal impersonation charge (People v. Dion, supra, 93 N.Y.2d, at 894, 689 N.Y.S.2d 685, 711 N.E.2d 963).   Absent proof that the December 17 readiness statement did not accurately reflect the People's position, the People discharged their duty under CPL 30.30.

 Finally, the People are chargeable at most with the first seven days of each of the contiguous post-readiness adjournments from December 17, 1998 to February 3, 1999, and from February 3, 1999 to February 26, 1999.   Delays due to the unavailability of the court resulting in adjournments for more than the time period actually requested by the People are excludable in post-readiness cases (see, People v. Rivera, 223 A.D.2d 476, 637 N.Y.S.2d 77, lv. denied 88 N.Y.2d 852, 644 N.Y.S.2d 698, 667 N.E.2d 348;  People v. Dushain, 247 A.D.2d 234, 236, 669 N.Y.S.2d 30, lv. denied 91 N.Y.2d 1007, 676 N.Y.S.2d 135, 698 N.E.2d 964). The contrary view expressed by the Calendar Judges who granted the adjournments is not binding upon us (see, People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783).

With the exclusion of the above-mentioned time periods, the People were well within the applicable 90-day statutory limit (CPL 30.30[1][b] ).

I concur with the majority that the criminal court's grant of defendant's speedy trial motion was in error as she failed to formally raise a hearsay challenge to the criminal impersonation count.   I write separately, however, to call into question the legitimacy of the “hybrid” information.   At the core of this appeal lies the question-what constitutes a valid information within the meaning of CPL § 100.40(1)(c) for purposes of CPL § 30.30(1)(b), when charging converted and defective counts in the same accusatory instrument.   I conclude, as a matter of statutory construction, that defective counts must be removed from the complaint before it can be deemed an information.   The People should not be allowed to answer ready for trial in a piecemeal fashion, as it unjustifiably obscures the definition of an information.

An information in the local criminal court is akin to that of an indictment in Supreme Court.   Both serve to:  (1) apprise the defendant of the nature of the charges and enable a defense;  (2) provide the local criminal court with sufficient legal evidence to furnish a reasonable ground to believe that a crime has been committed and thereby require the case bound over for trial;  and (3) for purposes of the speedy trial statute, eliminate guess-work by objectively establishing the date when the People have done everything required of them to bring the case to trial, and thereby abolish the need for a court to determine to whom adjournment delays should be charged.   The prosecution's function of securing a sufficient instrument is a fundamental task, and the failure to do so within the time fixed by statute will result in dismissal of the prosecution.  (See, People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305;  aff'd., 59 N.Y.2d 921, 453 N.E.2d 548, 466 N.Y.S.2d 319 (1983);  People v. Worley, 66 N.Y.2d 523, 488 N.E.2d 1228, 498 N.Y.S.2d 116 (1985)) (delays before conversion of a misdemeanor complaint to an information occasioned by motions or adjournments requested by defendant were not chargeable to the People).   While there is no statutory definition of “readiness,” case law dictates the prosecution can only answer “ready” and thereby toll the speedy trial statute, when in fact they are actually ready.   See, People v. Kendzia, 64 N.Y.2d 331, 476 N.E.2d 287, 486 N.Y.S.2d 888 (1985);  People v. Carter, 91 N.Y.2d 795, 699 N.E.2d 35, 676 N.Y.S.2d 523 (1998).

A misdemeanor complaint, while sufficient to commence a criminal proceeding confers only limited jurisdiction on the local criminal court.   See, CPL §§ 100.10(1)(4), 170.65;  People v. Weinberg, 34 N.Y.2d 429, 315 N.E.2d 434, 358 N.Y.S.2d 357 (1974).   In the absence of the defendant's specific waiver, the criminal complaint must be replaced by an information.   CPL § 170.65(1).   Rather than necessitating the actual filing of a new accusatory instrument, conversion is accomplished by the prosecution's filing of supporting depositions that, together with the misdemeanor complaint, satisfy the requirements of a valid information.  (See, CPL §§ 170.65(1), 100.40);  see also, New York Pretrial Criminal Procedure, Lawrence K. Marks, (West 1996, 2000).

CPL § 100.40(1) provides that an information or a count thereof is sufficient on its face when:

(a).  It substantially conforms to the requirements prescribed in section 100.15;  and

(b).  The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;  and

(c).  Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. (emphasis added).

The majority does not take issue with the calendar judge's ruling that the criminal impersonation count was defective.   Instead, they conclude that a “partially converted” or “hybrid” information does not vitiate the People's readiness statement as to the properly converted counts.   I disagree.   In my view, the removal of defective counts is a condition precedent to deeming the instrument an information.  “The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used (citations omitted).”  People v. Finnegan, 85 N.Y.2d 53, 58, 647 N.E.2d 758, 761, 623 N.Y.S.2d 546, 549 (1995);  see also, McKinney's Cons.Laws of N.Y., Book 1, Statutes, §§ 76 and 92[a], [b].

As the motion court correctly understood, a partially converted instrument must be deemed a complaint rather than an information until the People provide the court with a basis for exercising “trial jurisdiction” (see, CPL § 1.20(24)) by removing unconverted counts.   A sufficient information, by definition, contains only non-hearsay allegations setting forth each element of the crimes charged.   See, CPL § 100.40(1)(c).   Assuming defendant's objection (see, People v. Casey, 95 N.Y.2d 354, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000)), any statement of readiness prior to conversion of a misdemeanor complaint has no effect for purposes of tolling the speedy trial statute when the defendant has not contributed to the delay.   See, CPL § 170.65(1);   People v. Worley, supra.;  People v. Davino, 173 Misc.2d 410, 661 N.Y.S.2d 915 (Crim. Ct. Kings Co.1997);  People v. Quiles, 179 Misc.2d 59, 683 N.Y.S.2d 775 (Crim.Ct.N.Y.Co.1998);  People v. Richberg, 125 Misc.2d 975, 481 N.Y.S.2d 237 (Crim.Ct.N.Y.Co.1984)(citing People v. Colon, supra.).   Comparably, when a grand jury has not voted an indictment, the People's announcement of readiness on a felony charge is ineffective.   See, e.g., People v. Correa, 77 N.Y.2d 930, 572 N.E.2d 42, 569 N.Y.S.2d 601 (1991);  People v. Afshar, 152 Misc.2d 615, 578 N.Y.S.2d 372 (Sup.Ct.N.Y.Co.1991).   A valid accusatory instrument is a prerequisite to toll the speedy trial statute.   See, e.g., People v. Cortes, 80 N.Y.2d 201, 604 N.E.2d 71, 590 N.Y.S.2d 9 (1992);  People v. Masellis, 140 Misc.2d 1024, 532 N.Y.S.2d 465 (Crim.Ct.N.Y.Co.1988)(People cannot benefit from the exclusions of the speedy trial statute when they failed to convert a misdemeanor complaint).

I also disagree with the majority's conclusion that “[t]he common practice of giving individual speedy trial treatment to discrete counts of an information is expressly authorized by statute (see, CPL § 170.30[1] [e] ) ․” In my view, the language “․ or a count thereof ․” used in CPL § 100.40 and § 170.30 does not evince a legislative intent to recognize partial corroboration of the complaint for purposes of speedy trial, but rather recognizes the multi-count instrument and serves to accommodate the requirements of CPL § 100.40(1) by allowing for the removal of defective counts without the ceremonial task of re-filing the entire instrument.

Notably, the CPL does not define the hybrid, partially-converted accusatory instrument.   It is a creation of the People allowed to answer ready on the converted counts contained in the same information charging unconverted counts.   The practice has been upheld in People v. Gonzalez, 168 Misc.2d 136, 645 N.Y.S.2d 978 (App. Term 1st Dep't 1996)(quoting People v. Minor, 144 Misc.2d 846, 549 N.Y.S.2d 897 (App. Term 2d and 11th Judicial Dists.1989) and People v. Hansen, N.Y.L.J., August 3, 1999, at p. 22, col. 1 (App. Term 1st Dep't 1999)).   However, the failure to elaborate the basis for the hybrid instrument, and the questionable policy behind it, has caused considerable difficulty as the trial courts attempt to integrate the hybrid instrument into existing law.   Compare, People v. Lopez, 170 Misc.2d 278, 648 N.Y.S.2d 231 (Crim. Ct. Kings Co.1996) and People v. Hussein, 177 Misc.2d 139, 677 N.Y.S.2d 653 (Crim. Ct. Kings Co.1998) with People v. Davino, supra.;   People v. Quiles, supra.;  People v. Richberg, supra.

The majority's reliance on People v. Dion, 93 N.Y.2d 893, 711 N.E.2d 963, 689 N.Y.S.2d 685 (1999), People v. Ortiz, 209 A.D.2d 332, 619 N.Y.S.2d 12 (1st Dep't 1994) and Matter of Ortiz, 253 A.D.2d 688, 678 N.Y.S.2d 91 (1st Dep't 1998), aff'd on other grounds, 93 N.Y.2d 959, 716 N.E.2d 175, 694 N.Y.S.2d 340 (1999) is misplaced.   The results of the cited cases are driven by different policy considerations and are not dispositive of what constitutes a valid information within the meaning of CPL § 100.40(1) for purposes of CPL § 30.30(1)(b), when charging converted and defective counts in the same accusatory instrument.

In the final analysis, when as here, some but not all of the counts in an accusatory instrument are ripe for prosecution, and the 90th day draws near, the prosecutor needs only to re-shape the instrument and remove the defective counts.   The prosecution is then free to announce its readiness for trial.   Given the statutory strictures of what constitutes a valid information, requiring the removal of defective counts prior to the instrument being deemed an information is “․ a small price to pay for upholding the logic of the statutory framework.”   See, People v. Alejandro, 70 N.Y.2d 133, 140, 517 N.Y.S.2d 927, 931, 511 N.E.2d 71, 75 (1987)(Bellacosa, J. concurring).


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