Opinion
2013-09-18
The PEOPLE of the State of New York, Plaintiff, v. Mario SCHIAVONE, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by K. Vance Hynes, Esq., Assistant District Attorney, for the People. Steven Banks, Esq., the Legal Aid Society, by Robin Frankel, Esq., and Steven Kuza, Esq., John Jay Legal Services, Pace University School of Law, for the Defendant.
Robert T. Johnson, District Attorney, Bronx County, by K. Vance Hynes, Esq., Assistant District Attorney, for the People. Steven Banks, Esq., the Legal Aid Society, by Robin Frankel, Esq., and Steven Kuza, Esq., John Jay Legal Services, Pace University School of Law, for the Defendant.
JOHN H. WILSON, J.
By a superceding information dated April 3, 2013, Defendant is charged with one count of Patronizing a Prostitute in the Third Degree (PL Sec. 230.04), a Class A misdemeanor, and one count of Loitering for the Purpose of Engaging in a Prostitution Offense (PL Sec. 240.37), a violation.
By motion dated April 9, 2013, Defendant seeks dismissal of all charges on the docket, asserting that the People's complaint is facially insufficient and dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors.
The Court has reviewed the Court file, the superceding information, Defendant's motion, and the People's Response dated May 10, 2013.
For the reasons stated below, the motion to dismiss for facial insufficiency is granted as to the charge of Loitering for the Purpose of Engaging in a Prostitution Offense.
FACTUAL STATEMENT
Pursuant to the superceding information, on or about August 2, 2012 at approximately 11:15 P.M., at the intersection of Reeds Mill Lane and Bivona Street, Bronx, New York, the Defendant is alleged to have approached a police officer and asked that officer “to engage in sexual conduct in exchange for a sum of United States currency.” See, superceding information dated April 3, 2013. The Defendant is alleged to have stated to the officer “I want sex. I'll give you forty dollars.” See, superceding information dated April 3, 2013.
By a Criminal Court complaint dated August 3, 2012, Defendant was initially charged solely with Loitering for the Purpose of Engaging in a Prostitution Offense, however, Patronizing a Prostitute in the Third Degree was added to the docket by the superceding information.
LEGAL ANALYSIS
(A) Defendant's Motion to Dismiss for Facial Sufficiency.
Under CPL Sec. 100.15, every accusatory instrument is required to contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every elementof the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).
Applying these principles to the instant matter, the factual allegations contained in the superceding information before this Court are facially insufficient to support the charge of Loitering for the Purpose of Engaging in a Prostitution Offense.
Defendant does not assert any facial deficiency in the charge of Patronizing a Prostitute in the Third Degree.
Under PL Sec. 240.37(2), a person is guilty of Loitering for the Purpose of Engaging in a Prostitution Offense when he or she “remains or wanders in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution or of patronizing a prostitute.”
In People v. Smith, 44 N.Y.2d 613, 621, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (1978), the Court of Appeals found that PL Sec. 240.37 was not void for unconstitutional vagueness; instead, the Court stated that the statute “requires loitering plus additional objective conduct evincing that the observed activities are for the purpose of prostitution.”
The Smith Court specifically cited to the Legislative findings in support of the language used in PL Sec. 240.37(2); “The legislature hereby finds and declares that loitering for the purpose of prostitution, patronizing and promoting prostitution is disruptive of the public place...(these actions have)...caused citizens who venture into such public places to be the unwilling victims of repeated harassment, interference and assault upon their individual privacy...” 44 N.Y.2d at 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (emphasis added).
Particular note should be taken of the both the statute's and the legislative findings' requirement that the conduct sought to be proscribed against is repeated conduct, not a single act. PL Sec. 240.37(2) states that a person “ repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons” if they are to be found guilty of loitering “for the purpose of prostitution or of patronizing a prostitute.” (Emphasis added).
The legislative history cited in Smith provides a strong foundation for the view that the statute is intended for the protection of “citizens who venture into such public places ... the unwilling victims of repeated harassment, interference and assault upon their individual privacy.” 44 N.Y.2d at 618, 407 N.Y.S.2d 462, 378 N.E.2d 1032.
More evidence for this interpretation is found in the proposed amendments to PL Sec. 240.37 found in New York Senate Bill 5879, Sec. 24, currently pending before the legislature, in which the term “patronizing a prostitute” has been removed from Subdivision 2, and placed in a separate Subdivision 3, which reads as follows; “Any person who remains or wanders in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of patronizing a prostitute...” is guilty of this offense.
Even in its proposed amendment, the legislature has chosen to continue the requirement of repeated conduct before a finding of guilt for loitering for the purpose of patronizing a prostitute under PL Sec. 240.30(2).
“The primary consideration of courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.” See, McKinney's Cons.Laws of N.Y. Book 1, Statutes, Sec. 92(a) at 177, cited in People v. Chavez, 2013 WL 4279754 (Crim. Ct., Bronx Cty., 2013). It is obvious that the New York State legislature intended for a defendant's conduct to be repeated for criminal liability to attach under PL Sec. 240.37(2), and not a singular instance of the conduct alleged.
In both the original Criminal Court complaint, and the superceding information, the Defendant is alleged to have approached one single person, a police officer (presumably not in uniform), and asked that officer “to engage in sexual conduct in exchange for a sum of United States currency.” by stating to the officer “I want sex. I'll give you forty dollars.” See, superceding information dated April 3, 2013.
Only one single instance of the conduct complained of is alleged to have occurred. At no time is the Defendant alleged to “repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons.”
Therefore, Defendant's motion to dismiss the charge of Loitering for the Purpose of Engaging in a Prostitution Offense is granted.
(B) Defendant's Motion to Dismiss Pursuant to CPL Sec. 30.30.
Defendant asserts that the the People's complaint must be dismissed under CPL Sec. 30.30, “because the accusatory instrument is facially insufficient any statements of readiness are illusory and the entire period from arraignment until the present...is charged to the People.” See, Defendant's motion dated April 9, 2013, p 10, para. 23.
This Court can find no authority to support the invocation of CPL Sec. 30.30 under these circumstances. In fact, “replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable.” See, People v. Odoms, 143 Misc.2d 503, 504, 541 N.Y.S.2d 720 (Crim. Ct., Kings Cty., 1989).
Here, the People superceded their complaint to add a charge which fit the alleged conduct of the Defendant; Patronizing a Prostitute in the Third Degree. Under People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 (Crim. Ct., Kings Cty., 2000) this amendment is entirely appropriate, and does not involve an invocation of CPL Sec. 30.30. The “People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect)...(a)ny period of time beyond such reasonable period of time is chargeable to the People pursuant to CPL Sec. 30.30.” 185 Misc.2d at 36, 711 N.Y.S.2d 283.
Thus, even if it had been determined at Defendant's arraignment that the complaint was facially insufficient, the People could have been given a reasonable time period to supercede the complaint, and provide the required allegations.
The dismissal of the initial charge as facially insufficient has no effect on the People's amendment of the complaint to add an additional, higher charge. “Any perceived pleading defect relating to the subsequently dismissed...charge did not serve to vitiate the People's otherwise valid readiness statement relating to to the properly pleaded...charges.” See, People v. Brooks, 190 Misc.2d 247, 249, 736 N.Y.S.2d 823 (App. Term, 1st Dept., 2001).
Thus, this Court will review whether any time is charged to the People pursuant to CPL Sec. 30.30 for any other reasons.
The top count of the original Criminal Court Complaint dated August 3, 2012, was a violation. However, the superceding information dated April 3, 2013, raised the top count to a Class A misdemeanor.
Under People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002), “CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.” See, also,CPL Sec.30.30(1)(c). “The determinative factor is not the initial charge but the level of crime with which the defendant is ultimately accused' and for which he is prosecuted.” 98 N.Y.2d at 546, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (citations omitted).
This means that “when the level of crime charged increases while the action is pending, the applicable readiness period is that associated with the most serious offense, measured from the date of commencement of the criminal action.” 98 N.Y.2d at 546, 750 N.Y.S.2d 258, 779 N.E.2d 1006. See, also, People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986).
Here, the increased charge is a Class A misdemeanor, which has an applicable time limitation of 90 days. See, CPL Sec. 30.30(1)(b). However, as stated above, this time period is measured from the commencement of the instant action, and not from the date of the addition of the higher charge to the docket.
Defendant was arrested in the instant matter on August 2, 2012, and arraigned the next day. The People stated ready for trial. Defendant was released in his own recognizance, and the matter was adjourned for possible disposition to October 25, 2012. This time is excluded on the consent of the defense.
On October 25, 2012, the Defense requested a motion schedule. The matter was adjourned to January 23, 2013 for motion practice. This time is excluded under CPL Sec. 30.30(4)(a).
On January 23, 2013, pre-trial hearings were granted, and the matter was then adjourned to April 3, 2013 for hearings and trial. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is excluded. See People v. Fleming, 13 A.D.3d 102, 785 N.Y.S.2d 333 (1st Dept., 2004), and cases cited therein.
On April 3, 2013, the People stated not ready for hearings and trial, and requested April 8, 2013. Though the matter was adjourned to April 17, 2013, it is well settled that post readiness, the People are to be charged with only the amount of time they request. See, People ex rel. Sykes v. Mitchell, 184 A.D.2d 466, 468, 586 N.Y.S.2d 937 (1st Dept., 1992); People v. Urraea, 214 A.D.2d 378, 625 N.Y.S.2d 163 (1st Dept., 1995). Thus, the People will only be charged with the 6 days they requested between April 3, 2013 and April 17, 2013.
Prior to April 17, 2013, the People filed a Statement of Readiness, and the superceding information which was served on the defense and filed with the Court on April 12, 2013. Since the People already made a post-readiness request, the Statement of Readiness has no effect on the time calculations made above.
Also prior to April 17, 2013, Defendant filed the instant motion. Since all subsequent adjournments have been for the purpose of consideration of Defendant's motion to dismiss, all further time is excluded under CPL Sec. 30.30(4)(a).
Since the People are charged with a total of 6 days to date in this matter, their time to prosecute this matter has not yet expired. Therefore, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.
This shall constitute the opinion, decision, and order of the Court.