Opinion
No. CR-029799-22QN
07-18-2023
The People of the State of New York v. Archer, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Sumayyah Siddiqui) For Mr. Archer: Queens Defenders (by Christopher Miller & David Byrne)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Sumayyah Siddiqui)
For Mr. Archer: Queens Defenders (by Christopher Miller & David Byrne)
Wanda L. Licitra, J.
The defense has filed a C.P.L. § 30.30 motion to dismiss. They argue that the People failed to complete a prerequisite task before stating ready for trial: filing a facially sufficient information as to all counts. (See C.P.L. § 30.30[5-a]). They argue that four counts in the information charging third-degree criminal possession of a forged instrument are all insufficient. Upon considering all the papers submitted, the court agrees. The motion is granted.
LEGAL ANALYSIS
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. To validly state ready, the People must first file a facially sufficient information. (People v. Colon, 59 N.Y.2d 921 [1983]; People v. Maslowski, 187 A.D.3d 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. Rodriguez, 214 A.D.3d 908, 908 [2d Dep't 2023]; see also C.P.L. §§ 100.40[1][c]; 100.15[3]). This standard is called a "prima facie" case. (People v. Alejandro, 70 N.Y.2d 133, 138 [1987]). 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 N.Y.2d 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 N.Y.2d 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." (People v. Sanson, 59 Misc.3d 4, 6 [App. Term, 2d Dep't 2018] [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 to the criminal procedure law 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 N.Y.3d 653, 660 [2006]). 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). The People do not argue otherwise.
The court first turns to the four counts charging third-degree criminal possession of a forged instrument. (P.L. § 170.20). A person commits that offense when, "with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument." (Id.). Here, the information alleges, in full:
Deponent [Police Officer Jillian Barbieri] states that at the above date, time, and place of occurrence, she observed the defendant... driving a gold 2004 Ford with the license plate lights not illuminated and with Georgia temporary license plate No.S1341884 affixed to the back of said vehicle.
Deponent further states that upon request, the defendant was unable to produce valid insurance or inspection information for said vehicle.
Deponent further states that said vehicle is not inspected in that there was no inspection sticker present anywhere on said vehicle.
Deponent further states that the defendant is the owner of said vehicle in that the defendant stated to her in sum and substance, this is my vehicle. I got the plate from a dealer in Delaware.
Deponent further states that upon request the defendant presented a registration card for Georgia temporary license #S1341884.
Deponent further states that she recovered Georgia temporary license plate #S1365654 as well as the registration card for Georgia temporary license plate #S1365654 from one of the pockets of the back passenger seat of said vehicle.
Deponent further states that she observed Georgia temporary license plate #S1365654 and Georgia temporary license plate #S1341844 to be forged.
Deponent further states that her conclusion that said items are forged is based upon her training in the detection and identification of forged instruments and in that they were both on printer paper, the vehicle information were [sic] not a sticker, and there were no Georgia state seals, whereas an authentic Georgia temporary license plate would be on weatherproof paper, and the vehicle information would be sticker placed on paper, and there would be two (2) Georgia state seals.
Deponent further states that she observed the registration cards for Georgia temporary license plate #S1365654 and Georgia temporary license plate #S1341884 to be forged.
Deponent further states that her conclusion that said items are forged is based upon her training in the detection and identification of forged instruments and in that said registration cards were not perforated whereas an authentic Georgia registration card would have perforations.
(Information at 2). The four counts thus cover four documents: Georgia temporary license plate #S1365654; Georgia temporary license plate #S1341844; and the registration card for each.
The defense argues that the information fails to establish two elements of the forged-instrument offenses: (1) that Mr. Archer had knowledge that the instruments were forged; and (2) that Mr. Archer possessed the instruments with the intent to defraud, deceive, or injure another. (See Def. Mot. at 7-11). In response, the People shadowbox an argument that the defense never made-whether the instruments were, in fact, forged. (See Pr. Resp. at 5-7 ["The accusatory instrument sufficiently pleads the forged nature of the Temporary Texas [sic] License Plate found within the Defendant's possession."]). They defend nothing else.
The court next turns to appellate case law. In People v. Mbaye, an officer alleged in an accusatory instrument that he recovered an "International Driver's License" from a person's wallet. (51 Misc.3d 142[A], at *1 [App. Term, 1st Dep't 2016]). The officer swore that "based upon his training and experience" he "recognized" the document to be "forged" because "there is no such valid document as an International Driver's License," only an "International Driver's Permit, but that document is a paper pamphlet, whereas this... is a laminated flat card." (Id. [internal quotation marks omitted]). The Appellate Term held that this was not even facially sufficient to establish the lesser reasonable cause requirement of a misdemeanor complaint. (Id.). That was because it did not "give rise to the inference that the defendant possessed the 'forged' license with the knowledge and intent required by the Penal Law § 170.20." (Id.). The Appellate Term noted that accusatory instrument did not set forth any "conduct and events" from which "knowledge of the forged nature" could be inferred, such as "how or where the license came into defendant's possession." (Id. [citing People v. Johnson, 65 N.Y.2d 556 [1985] [internal quotation marks omitted]). "[D]efendant's knowledge and intent may not be imputed solely by his mere possession of the forged document." (Mbaye, 51 Misc.3d 142[A], at *1).
In People v. Rodriguez, an officer alleged in an information that a person "owned and operated" a vehicle, that a "forged Texas buy tag" was affixed to that vehicle, and that the officer "concluded the tag was forged" based on his "training in the detection and identification of forged instruments." (214 A.D.3d at 909). The Appellate Division, Second Department, found these allegations facially insufficient to establish that "the defendant had knowledge of the forged nature of the instrument." (Id. at 910 [internal quotation marks omitted]). Like in Mbaye, the Appellate Division here relied upon the Court of Appeals' rule that "'[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument.'" (Id. at 909 [quoting Johnson, 65 N.Y.2d at 561]).
By contrast, in People v. Reyes, "for purposes of satisfying the reasonable cause standard," the requisite knowledge and intent could be inferred from "defendant's admission that he had purchased the forged Homeland Security Employment Authorized card at a not insignificant cost" and then produced it to the arresting officer. (42 Misc.3d 127[A], at *1 [App. Term, 2d Dep't 2013]). And in People v. Cerda, a person's knowledge was properly inferred "from his conflicting explanations and the suspicious circumstances under which he came into possession of the [temporary license] plate." (61 Misc.3d 131[A], at *1 [App. Term, 1st Dep't 2018]).
Under this caselaw, the forged-instrument counts in the present information are plainly insufficient. There are no allegations suggesting that Mr. Archer knew all the temporary license plates and registration cards were forged or that he intended to deceive anyone. For instance, there were no errors so obvious that a layperson would notice the documents were off. The errors were technical and specific to Georgia-missing "state seals," "weatherproof paper," "perforations," or "stickers." (Information at 2). While an officer with specialized "training in the detection and identification of forged instruments" might recognize such errors, (see Information at 2), there is no reason a regular driver in New York would as well. (See People v. Bankston, 61 Misc.3d 669, 674 [Crim. Ct., NY County 2018] ["However, when the difference between a forged instrument and a genuine instrument is not readily apparent to a layperson, guilty knowledge may not be inferred unless the People allege additional facts."]; People v. Hellwig, 18 Misc.3d 1143 [A], at *1 [Crim. Ct., NY County 2008] [Kennedy, J.] [stating the same]). The information sets forth no "conduct and events" from which knowledge could be inferred, either. (See Mbaye, 51 Misc.3d 142[A], at *1). To the contrary, Mr. Archer's alleged statement that he "got the plate from a dealer" suggests the opposite, that he relied upon a seller's representations. (Information at 2). And for two of the documents, the information alleges nothing more than that they were "recovered... from one of the pockets of the back passenger seat" of the vehicle-not even that they were ever produced or displayed to anyone. (See id.). The information's mere allegations that Mr. Archer possessed these forged documents in a backseat pocket cannot alone establish the requisite knowledge and intent. (See Rodriguez, 214 A.D.3d at 909; Mbaye, 51 Misc.3d 142[A], at *1 ["[D]efendant's knowledge and intent may not be imputed solely by his mere possession of the forged document."]).
Therefore, the information is facially insufficient as to at least four of its counts. The criminal procedure law requires that, "[u]pon 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 [2023]). Here, the People failed to certify the facial sufficiency of all counts in this case. At least four counts were 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. The People commenced the case on December 1, 2022, and the instant motion schedule was set March 27, 2023. It is the People's burden to prove that any of the time between December 1, 2022, and now "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 A.D.3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 A.D.2d 1122, 1122 [4th Dep't 1993]). Here, the People claim no such C.P.L. § 30.30[4] exclusions. However, the defense concedes its motion tolled the clock. (See C.P.L. § 30.30[4][a]). Accordingly, the People are responsible for delay from December 1, 2022, to March 27, 2023. That is 116 days of delay. Because that is more than the 90 days the People are allowed, the case must be dismissed. (C.P.L. § 30.30[1][b]).
Any remaining issues are moot.
The foregoing constitutes the order and decision of the court.