Opinion
14570C-2009.
Decided November 9, 2009.
Defendant is charged with Criminal Contempt in the Second Degree (PL § 215.50). He now moves this court to dismiss the information as facially insufficient, pursuant to CPL § 100.40. He also moves to dismiss the charges against him pursuant to CPL §§ 30.30(1)(b) and 170.30(1)(e). For the reasons that follow, the motion to dismiss is granted.
Facial Sufficiency
The complaint alleges that on February 3, 2009, at approximately 8:00 PM, inside [an address in] Bronx County:
Deponent [Detective Ronald Pereira] is informed by informant that at the above time and place, (informant's residence), the informant observed the defendant inside her residence. Deponent is further informed by informant that defendant stated to informant in sum and substance, I'M GOING TO KILL YOU AND YOUR FAMILY.
Deponent is further informed by informant that defendant's aforementioned conduct caused informant to experience annoyance, alarm and fear for her physical safety.
Deponent is further informed by informant that she has a valid order of protection issued by the honorable Judge Stephen of New York County Criminal Court (Docket No. 2008NY008636) issued on May 16, 2008 and is valid until May 15, 2010. The deponent is further informed by informant that said order, in pertinent part, directs the defendant to stay away from the informant's home, to refrain from communication in any way and to refrain from harassing, menacing and intimidating informant.
Deponent is further informed by informant that defendant had knowledge of the aforementioned order of protection in that defendant's name appears on the bottom of said order and said order indicates that defendant was present in court when the order was issued.
Defendant moves to dismiss the accusatory instrument because the complainant is never named in the complaint. Accordingly, defendant argues that the "statements attributed to the unnamed complainant remain hearsay, which violates CPL § 100.40, requiring dismissal of the information."
The People respond that defendant was provided with sufficient notice regarding the identity of the complainant and that the filing of Syeda Yasmin's supporting deposition converted the misdemeanor complaint to an information.
Analysis
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40(1)(c). This requirement, the " prima facie case" requirement — that the factual part establish every element of the offense charged — applies only to informations. This is because the information is the sole instrument upon which a defendant is prosecuted for a misdemeanor or petty offense. People v. Kalin , 12 NY3d 225 , 229-30 (2009). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133, 136-37 (1987); People v. Dumas, 68 NY2d 729 (1986). However, "[s]o long as the factual allegations of an information 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 Casey, 95 NY2d 354, 360 (2000) (citations omitted). The Court of Appeals recently reiterated that the "prima face case requirement [for a misdemeanor information] is not the same as the burden of proof beyond a reasonable doubt required at trial, . . . nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.'" People v. Kalin, 12 NY3d at 230 (citations omitted).
"[A]n information must set forth the required nonhearsay evidentiary allegations within the four corners of the instrument itself' or in annexed supporting depositions." People v. Thomas , 4 NY3d 143 , 146 (2005) (citation omitted). The People did serve and file a supporting deposition signed by Syeda Yasmin, together with an affidavit of translation. They argue that these documents, together with the copy of the underlying order of protection which they also served and filed, converted the hearsay in the complaint and gave defendant ample notice of the identity of the complaining witness. Yet, these claims do not address the question presented here: did the failure to name the source of Detective Pereira's information within the accusatory instrument itself render the complaint defective? For the reasons that follow, this Court holds that this defect was fatal to the accusatory instrument.
It has long been the rule that a complaint that contains allegations made on information provided by someone other than the deponent must name the source of the deponent's allegations. People v. James, 4 NY2d 482, 486 (1958) (dismissing as facially insufficient information that did not name source of deponent's allegations, despite the fact that signed witness statements were subsequently filed; "It would be manifestly unjust to charge persons with crime on pure unidentifiable hearsay."); People v. Quinones, 190 Misc 2d 648 (Crim Ct Kings County 2002) (rejecting People's claim that a misdemeanor information need not state a complaining witness' name; People's filing of a supporting deposition signed by a complainant not named in the complaint insufficient to establish a prima facie case and violative of defendant's Sixth Amendment right to confront his accuser); People v. Drucker, 159 Misc 2d 205 (Crim Ct Bronx County 1993) (complaint based solely on hearsay allegations of unidentified undercover officer was facially insufficient, and filing and serving of supporting deposition that identified undercover officer by badge number did not cure the defect, because badge number was missing from complaint and undercover officer did not allege in supporting deposition that he was same informant mentioned in complaint); People v. Pleva, 96 Misc 2d 1020 (Dist Ct Suffolk County 1978) (after analyzing People v. James, supra, and CPL §§ 100.15, 100.40(4) and 120.20, holding that a misdemeanor complaint based on information and belief without disclosing the source of the information and belief is not sufficient on its face within the meaning of CPL § 100.40(4) if it does not disclose source of information and belief).
The People have been on notice of the patent defect in the complaint since at least April 3, 2009, when this Court adjourned the case for them to file a superceding information. The stenographic minutes of the court proceedings on April 3, 2009, reveal that the defect in the accusatory instrument was discussed in open court and that the People acknowledged their obligation to file a superceding information. The People never did so, however, and their arguments now cannot save this prosecution. For example, the People argue that defendant had ample notice of the identity of his accuser because they served and filed an order of protection naming the informant, Syeda Yasmin; they served CPL § 710.30(1)(b) identification notice, also naming Syeda Yasmin as the person who identified defendant as the perpetrator of the alleged crime; they requested a temporary order of protection for Ms. Yasmin; and they ultimately served and filed Ms. Yasmin's supporting deposition (Seidel Aff. at pp 2-3). But these arguments are unavailing for several reasons. The order of protection that the People served and filed in this case named two protected parties, Syeda Yasmin and [another person]. While the Court can surmise that the second-named individual is a child-in-common and therefore not likely to be the informant, the court does not know this from the complaint itself. Moreover, as in People v. Drucker, 159 Misc 2d at 207, Ms. Yasmin does not allege in her supporting deposition that she is in fact the same informant mentioned in the complaint. Therefore, it is unclear what information Ms. Yasmin is affirming was based on her personal knowledge.
A copy of the stenographic minutes of the court proceeding on April 3, 2009, is attached to this decision.
The arraignment judge did not indicate in the court file that identification notice was served.
The supporting deposition states "I, SYEDA YASMIN say that I have read the complaint filed in the above-entitled action attached hereto and that the facts stated in that complaint to be on information furnished by me are true upon my personal knowledge." Of course, the complaint here does not identify Ms. Yasmin as the source of the deponent's information.
Accordingly, for the foregoing reasons, the Court holds that the accusatory instrument is facially insufficient because it does not state the source of the deponent's information. The underlying order of protection and supporting deposition did not cure the hearsay defect. The Court now turns to the question of whether the People have any remaining speedy trial time in which to cure the deficiency.
Motion to Dismiss Pursuant to CPL § 30.30(1)(b) Parties' Contentions
Defendant moves to dismiss the accusatory instrument pursuant to CPL § 30.30(1)(b), claiming that the prosecution "exceeded the statutory limit of ninety days to file a valid accusatory instrument upon which [he] may be tried." Specifically, defendant argues that because the People never properly converted the hearsay allegations in the misdemeanor complaint, they never filed a valid accusatory instrument on which he could be tried and were therefore not "ready" for trial within the applicable statutory period.
The People oppose defendant's motion, arguing that they have maintained their readiness for trial since May 1, 2009, with the exception of a one week adjournment they requested on June 10, 2009. The People also claim that even if this Court were to decide that the complaint was unconverted, "all of the adjournments after the People's Statement of Readiness on May 1, 2009, made by request and with consent of the defendant would be excludable pursuant to CPL § 30.30(4)(a)."
The People did not serve a notice of readiness until May 4, 2009.
Defendant is charged with Criminal Contempt in the Second Degree (PL § 215.50), a class A misdemeanor. Pursuant to PL § 70.15, an A misdemeanor is punishable by a definite sentence not exceeding one year. Accordingly, the People were required to announce their readiness for trial within 90 days of commencing the criminal action against defendant. CPL § 30.30(1)(b). In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of ninety days. People v. Santos, 68 NY2d 859, 861 (1986); People v. Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002). Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded. People v. Santos, supra; People v. Khachiyan, supra.
In order for the People effectively to announce ready for trial, they must both communicate their readiness and in fact be ready for trial. People v Kendzia, 64 NY2d 331, 337 (1984). The People's statement of readiness for trial is valid when they have removed all legal impediments to the commencement of their case. People v. England, 84 NY2d 1, 4 (1994). Since, pursuant to CPL § 170.65, a misdemeanor complaint must be replaced by an information for the purposes of prosecution, the People cannot effectively state ready for trial until the accusatory instrument has been converted to an information. People v. Brooks, 190 Misc 2d 247, 253 (App Term 1st Dept 2001) ("statement of readiness prior to conversion has no effect for purposes of tolling speedy trial statute when the defendant has not contributed to the delay"); People v. Quiles, 179 Misc 2d 59, 64 (Crim Ct New York County 1998) (People could not effectively declare ready for trial where they failed to file and serve corroborating affidavit). It is well settled that to be ready the prosecution must have filed a valid accusatory instrument sufficient to confer on the court jurisdiction to try the defendant. Thus, the prosecution cannot be ready to try a defendant based upon a misdemeanor complaint, as it does not confer jurisdiction to try the defendant. Here, defendant was arraigned upon the misdemeanor complaint on March 6, 2009. Accordingly, the People were required to obtain a valid information upon which he could be tried within 90 days of that date, excluding any delays requested by or consented to by defendant.
Calculation of Includable and Excludable Time
1. March 6, 2009 to April 3, 2009
Defendant was arraigned on March 6, 3009. The People concede that they were not ready for trial. The People are charged with 28 days of delay.
2. April 3, 2009 to May 12, 2009
On April 3, 2009, the People concede that they were not ready for trial. The case was adjourned until May 12, 2009, for the People to file a superceding information. The People did not file a superceding information, but instead served a written Statement of Readiness off calendar on May 4, 2009. This notice of readiness was insufficient to toll the speedy trial time, however, because the supporting deposition did not convert the hearsay in the complaint. The People argue that adjournments made at the request or with the consent of defendant are excludable, even when the accusatory instrument has not been converted to an information. But the Court cannot agree with the People's assertion that all adjournments after May 4th were made with defendant's consent merely because the People maintained their readiness "without objection." Defendant objected to the form of the accusatory instrument on April 3rd. That the People chose not to file a superceding information does not render defendant's subsequent appearances in court without objection to the form of the accusatory instrument "consent" within the meaning of CPL § 30.30(4)(b). Accordingly, the complaint was not converted to an information and the People had not filed a valid information upon which defendant could be tried. The People are charged with 39 days of delay.
3. May 12, 2009 to June 10, 2009
On May 12th defense counsel, Jason Steinberger, was relieved and present defense counsel, Matthew Caldwell, was assigned. The People provided a run-down of the case and conveyed a plea offer, and the case was adjourned for trial. The People still had not filed a valid information upon which defendant could be tried. The People are charged with 29 days of delay. People v. Brooks, 190 Misc 2d 247, 253 (App Term 1st Dept 2001) ("statement of readiness prior to conversion has no effect for purposes of tolling speedy trial statute when the defendant has not contributed to the delay").
4. June 10, 2009 to June 17, 2009
On June 10, 2009, the People were not ready for trial and requested a one week adjournment. The case was adjourned to June 17th. The People are charged with seven days of delay.
5. June 17, 2009 to August 12, 2009
On June 17, 2009, the People stated that they were ready for trial. Defense counsel indicated that he was not ready for trial and requested an adjournment. Ordinarily, no time would be charged to the People. CPL § 30.30 (4)(b). However, because the People's statement of readiness was invalid, because they had not yet filed a valid information, this time is charged to them. The People are charged with 56 days of delay.
Even if this time were not chargeable to the People because defense counsel stated not ready, the result would not change, because by June 17th the People were already chargeable with 103 days of includable delay.
6. August 12, 2009 to October 7, 2009
On August 12, 2009, the People stated that they were ready for trial. Defense counsel filed the instant motion to dismiss the complaint at that time. The remainder of the time that has elapsed in this case is attributable to motion practice and the court's decision. No time is charged to the People. CPL § 30.30(4)(a).
Conclusion
Upon calculating all of the speedy trial time periods applicable to this matter, the court finds that 159 days of delay are chargeable to the People. Therefore, defendant's motion to dismiss for a CPL § 30.30(1)(b) violation is granted.
Accordingly, defendant's motion to dismiss the charges against him pursuant to CPL § 30.30(1)(b) is granted.
This opinion constitutes the decision and order of the court.