Opinion
06-21-2023
The People of the State of New York, v. Rubio, Defendant.
For the People: Melinda Katz, District Attorney of Queens County (by Jacob Saks) For Mr. Rubio: The Legal Aid Society (by John Kalinowski)
Unpublished Opinion
For the People: Melinda Katz, District Attorney of Queens County (by Jacob Saks)
For Mr. Rubio: The Legal Aid Society (by John Kalinowski)
WANDA L. LICITRA, J.C.C.
The defense has filed a C.P.L. § 30.30 motion alleging that the People's initial statement of readiness-made on the 90th day after arraignments-was illusory. (See C.P.L. § 30.30[1][b]). They argue it was illusory because it was improperly made upon a superseding information, filed that same day, containing hearsay. The People oppose and argue that their superseding instrument was valid because its hearsay allegations met the business records exception. For the reasons explained below, the motion is granted.
RELEVANT PROCEDURAL HISTORY
On December 16, 2022, the People commenced this case by filing an information. That information charged four offenses: V.T.L. § 1192[3], V.T.L. § 1192[1], V.T.L. § 511[1][a], and V.T.L. § 509. The People were not ready for trial, and the case was adjourned to February 2, 2023. On February 2, 2023, the People again were not ready for trial. The case was adjourned to April 18, 2023. In the interim, on March 16, 2023, the 90th day after arraignments, the People filed a packet of documents with the court. That packet contained a statement of readiness, a "superseding information," and a certificate of discovery compliance. The new information charged V.T.L. § 1192[2], V.T.L. § 1192[2-a], V.T.L. § 1192[3], and V.T.L. § 1192[1].
LEGAL ANALYSIS
The first issue the court must determine is whether the People's March 16, 2023, "superseding information" passes the "non-hearsay allegations" requirement of C.P.L. § 100.40[1][c]. In full, that provision dictates that an information is sufficient when "[n]on-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." (C.P.L. § 100.40[1][c]). The non-hearsay requirement serves a critical and unique function. A misdemeanor case, unlike that of a felony, is not predicated upon admissible evidence presented at a preliminary hearing or grand jury proceeding. Instead, it proceeds solely upon an information. The non-hearsay requirement thus provides an important safeguard: that a person only be prosecuted upon sworn allegations by someone with personal knowledge of the offense. This longstanding rule deters baseless prosecutions by demanding "that criminal proceedings be underpinned by 'the sanction of an oath and subject to the penalty of perjury if willfully false.'" (People v. Jeffries, 19 N.Y.2d 564, 567 [1967] [quoting People ex rel. Livingston v. Wyatt, 186 NY 383, 391 [1906]]).
The "superseding information" here alleges, in pertinent part, that:
Deponent [Police Officer Sophia Mattheos of the 104th Precinct] states that she has examined a copy of the records of the City of New York Office of the Chief Medical Examiner, Forensic Toxicology Laboratory, maintained by the New York City Office of the Chief Medical Examiner, and that said record was made in the regular course of business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter and that said records indicated that the defendant had a.28 of one percentum or more by weight of alcohol in his blood based on the testing of the above mentioned blood samples.
These are the information's only allegations to support necessary elements of V.T.L. §§ 1192[2] and [2-a]-that Mr. Rubio's blood alcohol content was higher than 0.08 and 0.18 percent, respectively.
The "superseding information" here does not pass the C.P.L. § 100.40[1] non-hearsay requirement. It contains hearsay: the deponent officer alleges statements she read from an OCME record for the truth of the matter asserted. To be sure, in People v. Casey, the Court of Appeals recognized a proviso to the non-hearsay requirement. (95 N.Y.2d 354, 361 [2000]). Under Casey, the non-hearsay requirement "is met so long as the allegation would be admissible under some hearsay rule exception." (Id. at 361). As a result, an information may contain allegations that are hearsay but fall under the business records exception. To establish that a record falls under that exception, the information must allege the exception's foundational requirements: (1) the record was made in the regular course of business; (2) it was in the regular course of business to make it; (3) it was made contemporaneously with the information recorded within it or within a reasonable period thereafter; and (4) the recorder had personal knowledge about the information being recorded or the source of the information had personal knowledge and a business duty to transmit the information accurately to the recorder. (People v. Patterson, 28 N.Y.3d 544 [2016]; Johnson v. Lutz, 253 NY 124 [1930]; Bank of NY Mellon v. Gordon, 171 A.D.3d 197, 204-06 [2d Dep't 2019]).
The fourth requirement is important. It is essentially an application of the rule against "double hearsay." (E.g., Global Energy Efficiency Holdings, Inc. v. William Penn Life Ins. Co. of NY, 180 A.D.3d 624, 624 [1st Dep't 2020]; King v. King, 99 A.D.3d 672, 673 [2d Dep't 2012]). "Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records." (People v. Ortega, 15 N.Y.3d 610, 620 [2010] [Smith, J., concurring] [internal quotation marks omitted]). The record containing the statement is one level of hearsay. But the statement contained in the record may itself be another. Without the fourth requirement, the business record exception would only cover the first level. It would do nothing about the second.
Here, the information completely omits the fourth requirement of the business records exception. There is no allegation that the person who recorded the information in the OCME record-or the source of that information-had personal knowledge of it. Nor is there any allegation that any source of the information had a business duty to transmit the information accurately to the recorder. Therefore, from the face of the accusatory documents, this record and its statements would not be admissible under the business records exception. (See, e.g., Cover v. Cohen, 61 N.Y.2d 261, 274 [1984]). As a result, the Casey proviso does not apply.
In addition, the information's allegations providing the rest of the foundational requirements are themselves impermissible hearsay. (See People v. Friedman, 48 Misc.3d 817 [Crim. Ct., Queens County 2015] [involving that same problem]). "A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures." (HSBC Motg. Servs., Inc. v. Royal, 142 A.D.3d 952, 954 [2d Dep't 2016] [internal quotation marks omitted]). Here, the deponent to the superseding instrument is an NYPD officer. But this officer, "as an employee of the NYPD, is not in a position to attest to the record keeping" of OCME, "a different agency of which he is not a member." (See Friedman, 48 Misc.3d at 820-21 [making the same analysis regarding a police officer's allegations about the regular business procedures behind NYSPIN]; see also People v. Brown, 15 Misc.3d 1143 [A], at *1 [Crim. Ct., NY County 2007] ["[T]he officer, as an employee of the New York City Police Department, not the State Department of Motor Vehicles, could not have personal knowledge" about that agency's "procedures for mailing... notices to affected drivers"]; People v. Pao Fun, 16 Misc.3d 917, 920 [Crim. Ct., NY County 2007] ["[T]he officer, as an employee of the New York City Police Department, not the State Education Department, could not have personal knowledge of the defendant's license status."]; People v. Sylla, 154 Misc.2d 112, 118 [Crim. Ct., NY County 1992] ["A member of the New York City Police Department, not acting as custodian for, or agent of, the Department of Consumer Affairs, is not in a position to know-first hand-if the records upon which he relied are compiled under circumstances that would make them sufficiently reliable as to permit their entry into evidence."]; People v. Diouf, 153 Misc.2d 887, 892 [Crim. Ct., NY County 1992] ["The prosecution has failed to show that the police officer is a custodian of the records at the Department of Consumer Affairs or that the officer has any knowledge of the agency's record-keeping practices."]). "Without a supporting deposition from a custodian" of the OCME records, "the allegation that the [record] was made and obtained in the regular course of [OCME] business" is "itself" hearsay. (See Friedman, 48 Misc.3d at 820-21 [noting the same for NYPSIN records] [internal quotation marks omitted]). For this reason, as well, the Casey proviso cannot apply.
The People's arguments pointing to documents disclosed in discovery or attached to yet another purported superseding instrument that was later filed in court on April 18, 2023, are irrelevant to this decision. First, documents only disclosed in discovery are irrelevant to a facial sufficiency analysis. An information "must set forth the required non-hearsay evidentiary allegations within 'the four corners of the instrument itself.'" (People v. Thomas, 4 N.Y.3d 143, 146 [2005] [quoting Preiser, Practice Commentaries, C.P.L. § 100.10]; see also People v. Hardy, 35 N.Y.3d 466, 475 [2020] ["[I]n evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners."]). Second, this motion concerns the People's statement of readiness on the 90th day after arraignments, on March 16, 2023. The People's documents affixed to a later superseding instrument filed on April 18, 2023-well beyond ninety days after arraignments-are irrelevant.
As a result, the "superseding information" here was a nullity. It contained hearsay, falling under no exception, and therefore was no superseding information at all. Instead, it was a "superseding complaint." But as this court has previously explained, the criminal procedure law does not recognize a "superseding complaint" as a valid accusatory instrument. (People v. Saavedra, 76 Misc.3d 626, 629-30 [Crim. Ct., Bronx County 2022]; see also People v. Gibbs, 35 Misc.3d 1244 [A], at *2 [Sup. Ct., Bronx County 2012] [same]; People v. Diaz, 63 Misc.3d 1211 [A], at *4 [Crim. Ct., Bronx County 2019] [same]; People v. Severino, 74 Misc.3d 1229[A], at *3 [Crim. Ct., NY County 2015] [same]). Therefore, it was a "nullity" in its entirety. (See Saavedra, 76 Misc.3d at 629-30).
The court must next determine what effect this all has on the People's readiness. That presents a trickier question. Was the People's readiness valid if they stated ready on an invalid superseding instrument, but had previously filed a valid information?
The People do not get this far in their papers (they end on arguing that the "superseding information" is valid), so the court articulates the obvious argument in their defense. If the "superseding information" was a nullity, then the controlling accusatory instrument in this case was the one filed at arraignment. But that instrument was a facially sufficient information. Therefore, the People have not run afoul of their basic requirement to file a valid information before stating ready. Moreover, the People could theoretically have been ready to proceed on that first instrument when they stated ready on the second. After all, the second instrument only added charges to the case, so if they were ready on the second, they could have been ready on the first.
The problem with this argument is that the People's declaration of readiness must do more than announce a theoretical ability to commence trial. "[R]eadiness is practical, rather than theoretical." (People v. Smith, 163 Misc.2d 56, 59 [Crim. Ct., NY County 1994], aff'd, 169 Misc.2d 73 [App. Term, 1st Dep't 1996] [citing People v. England, 84 N.Y.2d 1 [1994]]; see also People v. Surgick, 73 Misc.3d 1212 [A], at *6-*9 [City Ct., Albany County 2021] [rejecting the People's claim that a witness's availability was irrelevant because they "could theoretically proceed to trial without ever speaking with a victim or other witness but instead focus their trial preparations on the evidence contained in the case file itself"]). Just because the People could have been ready does not mean they were, in fact, ready . And while filing a valid information is a "necessary precondition to the People's readiness," it is not a sufficient one. (People v. Khachiyan, 194 Misc.2d 161, 164-65 [Crim. Ct., Kings County 2002]). Instead, when the People answer ready for trial, it is a "representation to a court" that "the People have their witnesses available and willing to proceed, and that they have the evidence they need to proceed." (Id.).
The court cannot simply take the People's statement of readiness at face value. Rather, under C.P.L. § 30.30[5], the People must now affirmatively prove their "actual readiness." That statutory provision "unambiguously abrogated" former caselaw that "presumed" statements of readiness "valid." (Surgick, 73 Misc.3d 1212[A], at *7; see generally Hon. William C. Donnino, Practice Commentary § 30.30). Proving readiness is a now burden that the People must carry.
Here, where the People filed a statement of readiness attached to an invalid superseding instrument, the court concludes that the People cannot carry their burden to prove actual readiness. This is for at least two reasons. First, the fact that the People have filed a new instrument with new charges announces that they intend to proceed with this trial upon those new charges. But if the new instrument is not valid, then the People have not cleared a direct legal "impediment" to commencing that trial. (See England, 84 N.Y.2d at 5). That matters for the People's readiness on the entire case, as under C.P.L. § 30.30[5-a], the People can no longer partially state ready on only some charges. As a result, the court cannot artificially ground the People's readiness announcement on a prior information on the theory that they could have been ready to proceed on only those charges. Doing so would create a legal fiction that does not accurately reflect the People's stated position. Second, the court cannot find that the People were actually ready when they do not even possess an accurate understanding of the valid accusatory instrument in the case. Without such a fundamental understanding, the People cannot have an accurate sense of what the current charges are, what the relevant evidence is, and what they need to prove a prima facie case. In such a situation, the court cannot be confident in the People's representation that they are, in fact, ready to proceed to trial.
Indeed, C.P.L. § 30.30[5-a] was "designed to abrogate decisional law that authorized the prosecution to answer 'ready for trial'... as to some but not all of the charges." (Hon. William C. Donnino, Practice Commentaries § 30.30; see also People v. Matos, 78 Misc.3d 322, 325 [Crim. Ct., Kings County 2023] ["[T]he Legislature... sought to amend C.P.L. § 30.30 so that all counts of an accusatory instrument must be converted and facially sufficient before the People could announce ready for trial."]).
Accordingly, the court finds that the People failed to establish their readiness on March 16, 2023. Therefore, the C.P.L. § 30.30 clock ran from the commencement of the case on December 16, 2022, to April 18, 2023, when the defense requested a motion schedule. It is the People's burden to prove that any C.P.L. § 30.30[4] provisions should exclude any of that time, but they point to none. Therefore, the People are responsible for 123 days of delay. That is beyond the ninety days the People are allowed, and so the case must be dismissed. (C.P.L. § 30.30[1][b]).
The People also argue that the defense's motion was untimely, but it is well established that their argument is wrong. A challenge to hearsay in an accusatory instrument is timely if made "within 45 days of arraignment" on that instrument. (People v. Figueroa, 165 A.D.3d 509 [1st Dep't 2018]). Here, the defense requested a motion schedule on the day of that arraignment. And contrary to the People's misreading of C.P.L. § 245.35, there is no requirement that the defense email the People to explain the problems with their accusatory instrument before filing a motion challenging it. A defense attorney is not required to help the prosecution cure its error, carry its burden, or win its case. For an excellent articulation as to why, beyond the obvious, see People v. N.S., 58 Misc.3d 613, 615-17 [Crim. Ct., Queens County 2018], aff'd 71 Misc.3d 140[A] [App. Term, 2d Dep't 2021].
The foregoing constitutes the order and decision of the court.