Opinion
21555
October 2, 2001.
John Stevens, Ithaca, for defendant.
George M. Dentes, District Attorney, Ithaca, (Jevon Garrett of counsel), for plaintiff.
MEMORANDUM AND ORDER FACTS AND PROCEDURAL HISTORY
This matter came before the Court on two charges against defendant, Andrew Cleghorn (burglary in the second degree (§ 140.25 2., P.L.) and assault in the third degree (§ 120.00 1., P.L.), both alleged to have occurred on August 28, 2001 at 1:00 PM in the Village of Cayuga Heights, Tompkins County, New York. Defendant was arraigned with his counsel, John Stevens, on September 18, 2001. A "no contact" protective order was issued against defendant based on both charges. Defendant requested a preliminary hearing, and the Court scheduled it for September 18, 2001 at 8:00 PM. Defendant was released on his own recognizance.
Notice of the hearing was communicated to the District Attorney's Office through the Court Clerk and through the arresting officer. Because the Court was aware of the District Attorney's Office's general practice not to appear at preliminary hearings when the defendant was not incarcerated, the Court included in its message the Court's concern that non-appearance could possibly result in dismissal of the felony charge on the basis of § 180.70 4., C.P.L.
On September 18, 2001 at 8:00 PM the case was called for the preliminary hearing. Defendant and his attorney were present but no one from the District Attorney's Office appeared. Both the arresting officer and the Court Clerk were asked if the District Attorney's Office had been provided the above-mentioned notice. Both affirmed that each had, but only the arresting officer's notice included the Court's specific concern about possible dismissal if the District Attorney's Office did not appear. The prosecutor's office responded to the notice by stating that it would not appear, because the defendant was not incarcerated, and that if the felony charge was dismissed, it would seek indictment. No adjournment was requested.
At the September 18th preliminary hearing the defendant moved to dismiss the felony charge. The court granted the motion and dismissed the charge of burglary in the second degree pursuant to § 180.70 4., C.P.L., because the People failed to present evidence at the preliminary hearing establishing that there was reasonable cause to believe defendant committed a felony.
DISCUSSION
The issue before the Court is what forms of relief are available to the Court when the People choose not to participate in a preliminary hearing. Is the Court limited to releasing defendant on his own recognizance and/or exonerating the bail, or may/should the Court also dismiss the felony charge? In most cases the answer to this question ultimately matters little. Because even if a local court dismisses or reduces a felony, whether or not the prosecutor appears, the prosecutor is still free to seek indictment of the defendant through the grand jury. People Ex. Rel Hirschberg vs Close, 1 N.Y.2d 258 (1956). Notwithstanding the limited effect this procedural question has on the ultimate resolution of most of these cases, local courts and the parties are bound to follow the statutory scheme for preliminary hearings found in Article 180, C.P.L.
Dismissal, though, might be of importance if it: terminates a protective order based on the dismissed charge; affects the running of time for various purposes; relieves a defendant from having his/her charge pending in limbo between the local and county courts; has a res judicata effect when a defendant pleads guilty to a misdemeanor charge which is a lesser included offense of the dismissed felony.
Preliminary hearings are not constitutionally mandated. They arise solely from statute, Article 180, C.P.L.. People v. Moreno, 111 A.D.2d 273, 489 N.Y.S.2d 108 (2d Dep't 1985). The purpose of preliminary hearings, the duties of the Court and prosecution, and the remedies available are all found within the language of the statute. Section 180.10 1., C.P.L. states that
the primary purpose of the proceeding upon such felony complaint is to determine whether the defendant is to be held for action of a grand jury,
and subdivision 2. states that
the defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury.
Section 180.80, further delimits the number of hours a defendant may be incarcerated without a hearing and requires defendant's release if the time limit (or other exceptions) is not met. Thus, it appears the legislatures' primary concern was to protect defendant from long pretrial detention without judicial review.
But Article 180 states much more. In § 180.20 4. the statute provides the unique exhortation that the Court
must inform defendant of all rights specified in subdivisions two and three [prompt hearing and counsel]. The Court must accord defendant opportunity to exercise such rights and must take such affirmative action as is necessary to effectuate them.
Statutes do not normally contain special reminders that a court must to do that which the court is expected and required to do as a matter of course. Similarly, the statute states that the
district attorney must conduct such hearing on behalf of the people . . .
and
must call and examine witnesses and offer evidence in support of the charge . . .
(§ 180.60 1. and 5.). The legislature obviously wanted to make it very clear that this procedure was to be taken seriously and that the court and prosecutor were on special notice to act accordingly.
Article 180 also contemplates relief beyond release and bail exoneration. For example, a local court may make inquiry into whether a misdemeanor should be filed in lieu of the felony (§ 180.30) or, with the prosecutor's consent, the court can consider reducing the felony to a non-felony offense (§ 180.50).
Even more to the point, though, § 180.70 4. specifically states that at the end of the preliminary hearing the local court must dispose of the felony.
If there is not reasonable cause to believe that the defendant committed any offense, the court must dismiss the felony complaint and discharge the defendant from custody if he is in custody, or if, he is at liberty, it must exonerate the bail.
( emphasis supplied). If it was intended that a local court had only one choice when faced with insufficient proof or no proof, then the legislature would have left out the clause "the court must dismiss the felony complaint" and simply stated "discharge the defendant from custody . . ."
There are several cases that opine that when the prosecutor refuses to attend the preliminary hearing of a felony defendant, the only remedy available is to release the defendant from jail and exonerate his/her bail. People vs Phillips, 88 A.D.2d 672 (3rd Dep't 1982; People vs Penrose, 626 N.Y.S.2d 960 (County Crt., Warren County 1995); see also the Practice Commentaries, 11A McKinney's Consolidated Laws of New York Annotated, C.P.L. § 180.10 at page 122.
The primary flaws in the support for this conclusion are that in each of the cited cases the defendant was subsequently and independently indicted by the grand jury and the defendant sought to have the indictment dismissed, not the original felony charge in local court. While there is dicta stating that local courts can only release defendants and not dismiss the felony charges, the holdings in the cases are limited to the non-dismissal of the indictments.
Further, none of these cases address § 180.70 4., which specifically requires a local court at the end of a preliminary hearing to dismiss the felony complaint (as well as discharge the defendant from incarceration and/or exonerate his/her bail)
[i]f there is not reasonable cause to believe that the defendant committed any offense.
There are a number of lower court cases holding that a local court may dismiss a felony charge (or provide other related relief) if the prosecutor fails to appear for a preliminary hearing. Curiously, none of these courts relied on § 180.70 4. People vs Heredia, 81 Misc.2d 777 (Dist. Crt., Suffolk County 1975) (order to show cause why prosecutor should not be held in contempt for failing to appear at preliminary hearing); In Re: Freiss, 86 Misc.2d 852 (Sup. Crt., N.Y. County 1975) (motion to compel a preliminary hearing if prosecutor fails to appear for preliminary hearing); People v. Floyd, 133 Misc.2d 1034 (Utica City Crt. 1986) (dismissed felony charge in the interests of justice); cf. People vs Ervin, 159 Misc.2d 362 (City Crt., Poughkeepsie, 1993) (refused dismissal, but rescheduled the preliminary hearing).
This court can only speculate as to why none of the above courts dealt with § 180.70 4. It might have been argued that because § 180.70, speaks of relief available "after hearing" and the prosecutor in those cases did not come to the hearing, those courts assumed no hearing occurred and that § 180.70 4. was thereby rendered inapplicable. The problem with this argument is the anomalous and inconsistent result such a reading would produce based solely on whether or not the prosecutor choose to appear. If in one instance the prosecutor appears but presents insufficient or no evidence at all, the local court would be required under § 180.70 4. to dismiss. If in a second situation, the prosecutor similarly had insufficient or no evidence, but chose not to appear, then no dismissal could occur because there was "no hearing" to invoke § 180.70 4. Such an interpretation would encourage prosecutors to ignore their clear statutory mandate that they "must conduct such a hearing on behalf of the people" and "must call and examine witnesses and offer evidence in support of the charge" (§ 180.60 1. and 5.).
In any instance, this court finds that in the present case a preliminary hearing was held on September 18, 2001 at 8:00, albeit a short one. Notice of the hearing was given to and received by all parties, no adjournments were requested, and the prosecution openly declined to attend. The result of the September 18th preliminary hearing was that this court received no evidence, let alone evidence rising to the level of reasonable cause to believe, that defendant committed the felony of burglary in the second degree. Therefore, the court had no choice but to dismiss the felony charge pursuant to § 180.70 4., C.P.L.
Undoubtedly the prosecution chose not to attend for sound tactical reasons; possibly because it did not wish to expend resources doing a preliminary hearing when it could just as easily achieve the same result through indictment, or possibly because it did not want to preview it's case to defendant.
ORDER
It is hereby ordered that the felony complaint against defendant Andrew Cleghorn for burglary in the second degree (P.L. § 140.25 2.) is dismissed.