Opinion
CR-11065-18
03-07-2019
The PEOPLE of the State of New York, v. Mario GREEN, Defendant.
For the People: Timothy M. Boucher, Esq. For the Defendant: Tiffany M. Spangler, Esq.
For the People: Timothy M. Boucher, Esq.
For the Defendant: Tiffany M. Spangler, Esq.
Charles F. Crimi, Jr., J.On December 6, 2018, defendant was arraigned on accusatory instruments charging assault in the third degree and unlawful imprisonment in the second degree. At arraignment, defendant by his attorney, announced that she believed the accusatories were misdemeanor complaints and not informations. Furthermore, that the defendant would not consent to any adjournments, seeking presumably to avoid excludable time pursuant to CPL § 30.30(4)(b).
At arraignment, the matter was scheduled for a jury trial on February 26, 2018. No determination was made at the arraignment as to whether the accusatories were either complaints or informations. Prior to the trial date, no motions were filed by the defendant, nor did the People file any additional accusatories or supporting depositions.
At arraignment the People did file a CPL § 710.30 notice. Attached to the notice is a crime report from Officer Costello. As it is unsworn, its content cannot be considered in resolution of the issue involved in this case.
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On the day of trial the People announced readiness for trial on the charge of unlawful imprisonment only. Defendant continued to maintain the accusatory was a complaint specifically in that it was hearsay as to the identity of the defendant as person who committed the crime. No other challenge was raised as to the accusatory. The People maintain that the accusatory is an information as the accusatory signed by Officer Costello states the source of his knowledge is based on personal knowledge and upon information and belief specifically "[m]y investigation at 20 Myrtle Hill Pk." The court reserved decision.
It is axiomatic that absent express waiver of the right to be tried by an information, a defendant may not be tried by misdemeanor complaint. People v. Weinberg , 34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974). Although the waiver need not be in writing or by express oral statement. People v. Connor , 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468 N.E.2d 35 (1984), See also People v. Hatton , 26 N.Y.3d 364, 23 N.Y.S.3d 113, 44 N.E.3d 188 (2015). After Connor , the Court of Appeals addressed defective informations and waiver of the right to be prosecuted by information in People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). Casey , which factually is quite similar to the present case, stands for the following two propositions. First, relying on Weinberg and Connor , a defendant must knowingly and intelligently waive the right to be tried by misdemeanor information and secondly, when the charging document is claimed to be an information and the information is alleged to contain hearsay, the failure to file a timely motion to dismiss operates as a waiver of the hearsay claim.
Relying on Casey , both appellate and trial courts have held that a defendant, in order to preserve an hearsay objection or defect, must file a motion to dismiss the accusatory. Otherwise the failure to do so constitutes waiver of defendant's right to challenge any purported hearsay defects. This is so even though a defendant did not waive the right to be prosecuted by information. See People v. Schwartz , 59 Misc. 3d 143(A), 2018 WL 2270942 (App. Term 2d Dept. 2nd, 11th, 13th Jud. Dist. 2018), People v. Lamendola , 57 Misc. 3d 153(A), 2017 WL 5711533 (App. Term 2d Dept. 9th & 10th Jud. Dist. 2017), People v. Guez , 56 Misc. 3d 36, 56 N.Y.S.3d 772 (App. Term 2d Dept. 11th and 13th Jud. Dist.), lv. denied 30 N.Y.3d 980, 67 N.Y.S.3d 582, 89 N.E.3d 1262 (2017), People v. Berger , 60 Misc. 3d 937, 80 N.Y.S.3d 881 (Rochester City Ct. 2018), People v. Spradlin , 56 Misc. 3d 742, 52 N.Y.S.3d 833 (Ithaca City Ct. 2017).
So against this backdrop of decisional law, the issue is what standard is to be applied in determining what the accusatory is, either a misdemeanor complaint or information, and then whether it is sufficient as a matter of law.
The CPL provides that a misdemeanor complaint is a misdemeanor information, but with hearsay allegations included. Compare CPL § 100.40(4) with CPL § 100.40(1), See also People v. Fernandez , 20 N.Y.3d 44, 956 N.Y.S.2d 443, 980 N.E.2d 491 (2012). Following Casey and its progeny, the defendant's argument that the accusatory is a complaint based on hearsay fails, as no motion was made and failure to do so operates as a waiver of the argument that the accusatory is a complaint. While it could be argued that this result is inconsistent with the Weinberg holding, it is best viewed as a preservation issue under Casey or a waiver under Connor . Which is to say that to preserve the Weinberg rights, a defendant is required to do more than object, a defendant must move under Casey or risk the finding of a waiver under Connor where the defect alleged is hearsay. While admittedly not without doubt, and attempting harmonize and apply existing case law, it would appear that the more appropriate evaluative standard is that of an information particularly where, as here, the officer alleges personal knowledge in some degree.
As said, the only challenge to the accusatory is the argument the that the identity of the defendant as the person who committed the crime is hearsay. No other challenge was raised. Like Casey , from a facial examination of the information in this case, it is not clear that the allegation of the defendant being the person who committed the crime was not based on the officer's direct knowledge or some exception to the hearsay rule. Given defendant's waiver of that claim, and there being no other challenge, the accusatory is an information.
This shall constitute the Decision of the Court.