Opinion
CR-1799-20
02-18-2021
PEOPLE of the State of New York v. Andrea M. STEWART, Defendant.
Hon. Jason M. Carusone, Warren County District Attorney, (Lily Gebru, Esq., Assistant District Attorney, of counsel for the Plaintiff) Marcy I. Flores, Esq., Warren County Public Defender, (Damara J. Fredette, Esq., and Brian C. Pilatzke, Esq., Assistant Public Defenders, of counsel for the Defendant)
Hon. Jason M. Carusone, Warren County District Attorney, (Lily Gebru, Esq., Assistant District Attorney, of counsel for the Plaintiff)
Marcy I. Flores, Esq., Warren County Public Defender, (Damara J. Fredette, Esq., and Brian C. Pilatzke, Esq., Assistant Public Defenders, of counsel for the Defendant)
Gary C. Hobbs, J.
Procedural History
On December 7, 2020, the defendant, Andrea M. Stewart, through her attorney, filed a motion to dismiss on the grounds that the criminal information charging the defendant with the crime of Bail Jumping in the Third Degree [ Penal Law § 215.55 ] was facially insufficient pursuant to CPL 170.30(1)(a). This Court denied the defendant's motion by Decision and Order dated December 24, 2020.
The defendant now moves this Court for leave to reargue her prior motion pursuant to CPLR 2221(2)(d). In deciding the defendant's motion to reargue, the Court has reviewed and filed: the affirmation of Damara J. Fredette, sworn to on December 7, 2020, together with attached exhibits; the affirmation by Lily Gebru, Esq., sworn to on December 11, 2020, in opposition; the affirmation in support of the motion to reargue of Brian D. Pilatzke, Esq., sworn to on December 29, 2020; the December 30, 2020 letter response of Assistant District Attorney Lily Gebru, Esq., in opposition to the defendant's motion to reargue. This Court has also considered the oral arguments of counsel heard on January 19, 2021 on the defendant's motion. Finally, this Court has reviewed and takes judicial notice of the record of proceedings, orders and notices contained in its own files in Docket Numbers CR-1799-20, CR-0503-20, and CR-1318-20.
BACKGROUND FACTS
On May 5, 2020, the defendant was charged with the crime of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law § 220.03 ] in this Court's Docket CR-0503-20. After the defendant failed to appear for her arraignment on June 11, 2020 and again on June 23, 2020, this Court issued an arrest warrant. On August 26, 2020, the defendant was apprehended on the arrest warrant and arraigned on this charge. At the arraignment, the defendant was represented by Glenn Liebert, Esq., Assistant Public Defender. The Assistant District Attorney, Lily Gebru, extended the plea bargain offer, which had been provided to the Public Defender's Office on June 11, 2020. After she was arraigned, the proposed plea offer was read into the record by defense counsel. The offer included a plea of guilty to the crime of Criminal Possession of a Controlled Substance in the Seventh Degree and a proposed sentence of a conditional discharge, fine and surcharge per the Court, an OASAS drug and alcohol evaluation and compliance to successful completion of any recommended treatment. After a discussion of the proposed offer with defense counsel, the defendant decided to accept the offer.
On June 11, 2020, in anticipation of the defendant's arraignment, the People filed and served the Public Defender's Office with the Certificate of Compliance with Discovery and a proposed Plea Agreement.
On August 26, 2020, the defendant entered a guilty plea to the charge of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law § 220.03 ]. The defendant was then sentenced to the agreed upon sentence of a one-year conditional discharge. The Court's written Order of Conditional Discharge included a condition requiring the defendant to:
"Obtain a Drug/Alcohol Evaluation from an approved New York State Certified Agency, and provide a copy of your Evaluation to this Court on or before 9/29/20. If treatment is recommended, you are to follow any and all treatment recommendations including, but not limited to, in-patient or out-patient treatment, residential or aftercare treatment. You are not to discharge yourself from treatment, until you have successfully completed your entire course of treatment. You are to pay all costs and expenses of your treatment. You are to execute any releases or authorizations necessary to allow this Court to obtain any reports and/or up-dates concerning your treatment. You are required to obtain from your treatment provider and file with this Court any updates on your treatment as requested by this Court." (Underlining in Original).
At the conclusion of her arraignment, plea and sentence, this Court ordered the defendant released from custody and directed her to appear on September 29, 2020 to provide proof of her OASAS evaluation. She was provided with a written notice of adjournment, which states, in relevant part, "YOUR CASE HAS BEEN ADJOURNED IN THIS COURT UNTIL ... 9/29/20 for a Treatment Evaluation or Report " (Emphasis in Original). This notice further states, "Your Failure to Appear in Court on the above Date May Result in a Bench Warrant Being Issued for Your Arrest ..."
On September 29, 2020, the defendant failed to appear in court and produce a drug/alcohol evaluation. The matter was adjourned to October 8, 2020. On September 29, 2020, a written "Notice of Failure to Appear" was mailed to the defendant, which states:
"TAKE NOTICE that you were directed to appear on 09/29/2020 in the Glens Falls City Court to address the following charges: PL 220.03 AM Crim Poss Control Subst-7th AND, you failed to appear as directed. The matter has now been scheduled as follows: 10/08/2020 at 9:00 AM " (Emphasis in Original).
This notice also advised the defendant of the Court's address for her appearance and further stated, "If you fail to personally appear in court on the rescheduled date as indicated above, the court will issue a warrant for your arrest and any bail posted will be forfeited. You may also be subject to additional penalties under the New York State Penal Law without further notice. " (Emphasis in original).
On October 8, 2020, the defendant again failed to appear and, on that date, the Court issued a Declaration of Delinquency and Notice of Appearance for the defendant to appear on October 15, 2020. The Declaration of Delinquency alleged that the court has reasonable cause to believe that the defendant violated the Court's conditional discharge in that she: (a) failed to provide the Court with a copy of a Drug/Alcohol Evaluation on or before 9/29/20, which was extended to 10/8/2020, and (b) on September 24, 2020, she was re-arrested on new charges of Criminal Possession of Controlled Substance Seventh Degree [ Penal Law § 220.03 ](2 counts) and Criminally Using Drug Paraphernalia in the Second Degree [ Penal Law § 220.50(3) ] under Docket No. 1318-20. The Declaration of Delinquency warned that a failure to appear may result in a warrant for her arrest.
The Defendant was also scheduled for arraignment on October 8, 2020, on new charges of Criminal Possession of a Controlled Substance Seventh (2 counts) and Criminally Using Drug Paraphernalia in the Second Degree in Docket No. CR-1318-20.
On October 15, 2020, the defendant again failed to appear in Court and a bench warrant was issued for her arrest on the Declaration of Delinquency [Docket No. CR-0503-20]. An arrest warrant was also issued for her failure to appear for her arraignment on the new charges of Criminal Possession of Controlled Substance Seventh Degree and Criminally Using Drug Paraphernalia in the Second Degree under Docket No. CR-1318-20.
After her failure to appear on 10/8/20, the Court rescheduled the Defendant's arraignment on Docket No. Cr-1318-20 to 10/15/20 and forwarded the defendant a Notice to Appear for that date.
On November 30, 2020, the defendant was apprehended on this Court's October 15, 2020 bench and arrest warrants. On November 30, 2020, the Glens Falls Police charged the defendant with the crime of Bail Jumping in the Third Degree [ Penal Law § 215.55 ]. The factual portion of the Bail Jumping 3d Degree complaint alleges that:
"the defendant, Andrea M. Stewart, was released from custody or allowed to remain at liberty, either upon bail or upon his [sic] own recognizance, upon condition that he [sic] will subsequently appear in personally [sic] in connection with the criminal action or proceeding, and when he [sic] does not appear personally on the required date or voluntarily within thirty days thereafter. Specifically, your defendant was directed to appear in Glens Falls City Court on September 29, 2020, October 8, 2020, and October 15, 2020 all of which were more than thirty days."
The complaint is signed by Officer Zachary Tanner and asserts that it is "based on personal knowledge, the source being review of criminal history and copy of warrant." There was no supporting deposition filed with the accusatory instrument. The defendant was arraigned on the Bail Jumping 3d Degree charge on November 30, 2020 at the Warren County Centralized Arraignment Part, and was held on bail of $750.00 cash, or $1500.00 insurance bond or $1500.00 Partially Secured Surety Bond. The defendant posted bail on December 2, 2020.
Defendant's Motion to Dismiss and Reargue
In her original motion to dismiss and in the present motion to reargue, the defendant asserts that this Court must dismiss the misdemeanor complaint as being facially insufficient under CPL §§ 170.30, 170.35, 100.40 and 100.15. In her motion, the defendant asserts, in relevant part, that the factual portion of the criminal information fails to allege non-hearsay facts that establish every element of the offense and that the defendant committed the crime. [Fredette Affirmation, ¶8]. Here, the defendant asserts that "Officer Tanner was not a witness to the alleged offense; thus he cannot assert ‘personal knowledge’ of the offense and his statements are purely hearsay." [Fredette Affirmation, ¶9]. The defendant further asserts that the accusatory instrument alleges that the defendant was directed to appear in court, however "the Information is silent on what ‘criminal action or proceeding’ the defendant was directed to appear." [Fredette Affirmation, ¶10]. Finally, the defendant asserts that a charge of Bail Jumping in the Third Degree cannot be maintained until the defendant has been arraigned on the Court's October 8, 2020, declaration of delinquency. [Fredette Affirmation, ¶11]. Here, the defendant asserts that, unless the defendant is arraigned on the declaration of delinquency, "a criminal action or proceeding could not have been commenced." [Fredette Affirmation, ¶11, citing , CPL § 170.10(7) ]. Thus, the defendant claims that, prior to an arraignment on a Declaration of Delinquency, there is not a pending "criminal action or proceeding" which is an essential element of a Bail Jumping 3d Degree charge under Penal Law § 215.55. [Fredette Affirmation, ¶11].
The defendant's motion to dismiss includes a copy of the Court's bench warrant, declaration of delinquency and attached documents that were issued by this Court on October 15, 2020 in case file No. CR-0503-20 concerning the defendant's conviction and sentence on the crime of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law 220.03 ]. The copy of the bench warrant states that the defendant "[f]ailed to appear on 9/29/20 and 10/8/20 to provide the Court with an evaluation, a declaration of delinquency was filed. Failed to appear for arraignment on declaration of delinquency on 10/15/20." [Fredette Affirmation, Ex.1 and 2].
In her motion to reargue, the defendant asserts that the Court "overlooked or misapprehended the fact that the [sic] without having been arraigned on the Declaration of Delinquency, the Defendant was not by court order released from custody or allowed to remain at liberty upon the condition that (s)he will subsequently appear personally in connection with the criminal proceeding of the Declaration of Delinquency, as require by Penal Law § 215.55." [Pilatzke Affirmation ¶10]. Here, the defendant claims that "the criminal action for the Criminal Possession of a Controlled Substance in the Seventh Degree terminated on August 26, 2020 upon her sentencing." [Pilatzke Affirmation ¶12](emphasis added). The defendant asserts that, because of her sentencing, no criminal action or proceeding was pending against her between August 26, 2020 and October 8, 2020 [Pilatzke Affirmation ¶13]. Thus, the defendant maintains that the court lacked jurisdiction over the defendant between August 26 and October 8, 2020 [defense counsel's 1/19/20 oral argument], and she further asserts that the notices for the defendant to appear on September 29, 2020 and October 8, 2020 were merely a "request" for the defendant's appearance. [Pilatzke Affirmation ¶14]. Based on the assertion that all "criminal actions and proceedings" had "terminated" with the defendant's August 26, 2020 sentence, the defendant maintains that the Declaration of Delinquency constituted an entirely "new criminal proceeding". [Pilatzke Affirmation ¶15]. The defendant asserts that liability on a charge of Bail Jumping Third Degree cannot be maintained unless the defendant fails to appear for a period of more than thirty (30) days after she was arraigned on the declaration of delinquency. [Pilatzke Affirmation ¶s 18, 21, citing , People v. Wilder , 93 N.Y.2d 352, 712 N.E.2d 652, 690 N.Y.S.2d 483 (1999) ].
In response, the People requested that the "Court take judicial notice of the contents of the documents and records that were generated by this Court, together with the official record of in-Court proceedings." [Gebru Affirmation ¶ 12]. The People assert that this Court can review the facial sufficiency of the charge based on its review of all filed documents, not just the accusatory instruments and supporting depositions, if any. [Gebru Affirmation ¶ 12]. The People further assert that the Court of Appeals’ decision on Wilder does not stand for the proposition that "a defendant must be arraigned on a criminal action or proceeding before accruing liability for bail jumping." [Gebru December 30, 2020 letter response]. Instead, the People assert that Wilder merely decided which degree of a bail jumping charge was applicable to the defendant's failure to appear and not whether bail jumping liability was triggered for the defendant's failure to appear. [Gebru December 30, 2020 letter response]. The People cite to People v. West, 2020 N.Y. App. Div. LEXIS 8337, 189 A.D.3d 1981, 139 N.Y.S.3d 413 (3d Dept. 2020) as supporting the facial sufficiency of the charge of Bail Jumping 3d Degree against the defendant.
ANALYSIS
This case presents an issue of first impression. More specifically, is a charge of Bail Jumping in the Third Degree legally sufficient where the defendant fails to appear for more than 30-days after issuance of a notice to appear that directed the defendant to appear post-sentence on a conditional discharge to provide proof of compliance with the terms of her conditional discharge? To determine this issue, this Court must resolve whether the defendant's sentence to a conditional discharge on August 26, 2020, terminated the underlying criminal action. If the underlying criminal action was terminated, then was the post-sentence requirement that the defendant appear to provide proof of compliance with her conditional discharge a criminal proceeding? If so, was the Court's order releasing her from custody and allowing her to remain at liberty upon her own recognizance still in effect after her sentence, and was the Court's order of release conditioned on the requirement that she would subsequently appear personally in connection with a pending criminal action or proceeding?
Standard of Legal Sufficiency
The standard of legal sufficiency is well settled. To be legally and facially sufficient, the factual portion of an information "Noust contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 [3]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: "(a) it substantially conforms to the requirements prescribed in section 100.15"; and "(b) the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information"; and "(c) the non-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." An information must, therefore, provide the defendant with sufficient notice of the offense charged so that he or she can prepare for trial, and the factual allegations must be adequately detailed so that the defendant cannot be tried again for the same offense. People v. Jianjun Li , 64 Misc. 3d 33, 35, 101 N.Y.S.3d 817 [Sup. Ct., App. Term, 2019], (citing , People v. Sedlock , 8 N.Y.3d 535, 538, 838 N.Y.S.2d 14, 869 N.E.2d 14 [2007] ; People v. Konieczny , 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ; People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal complaint, when read together with any supporting depositions. People v. Jones , 9 N.Y.3d 259, 261, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007). The failure to assert sufficient non-hearsay factual allegations in the complaint is a jurisdictional defect. People v. Alejandro , 70 N.Y.2d 133, 134-135, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. McKinney's CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing , People v. Dumas , 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ; County of Riverside v. McLaughlin , 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).
However, so 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, the information should be given a fair and not overly restrictive or technical reading. See : People v. Konieczny , 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004) ; People v. Casey , 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in light most favorable to the People. See; People v. Mendelson , 15 Misc. 3d 925, 936, 834 N.Y.S.2d 445 [Dist. Ct., Nassau County, 2007], citing , People v. Gibble, 2 Misc. 3d 510, 773 N.Y.S.2d 499 [N.Y.C.Crim. Ct., 2003]. The allegations only need make out a prima facie case and need not establish the defendant's guilt beyond a reasonable doubt. People v. Henderson, 92 N.Y.2d 677, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999].
Under our law, a person is guilty of Bail Jumping in the Third Degree when "by court order he or she has been released from custody or allowed to remain at liberty, either upon bail or upon his or her own recognizance, upon condition that he or she will subsequently appear personally in connection with a criminal action or proceeding, and when he or she does not appear personally on the required date or voluntarily within thirty days thereafter." Penal Law § 215.55.
Under this definition, the essential elements of the crime of Bail Jumping in the Third Degree are that: (1) the defendant was, by court order, released from custody or allowed to remain at liberty either upon bail or upon his/her own recognizance; (2) the order imposed the condition that the defendant would subsequently appear personally in Court in connection with either a criminal action or criminal proceeding; and (3) the defendant did not appear personally on the required date or voluntarily within thirty days thereafter. The "required date" from which the thirty-day grace period is calculated is the date which has been set for the defendant's appearance and upon which the defendant fails to appear where failure to appear is not excused. Penal Law § 215.55, Practice Commentaries, by William C. Donnino, citing, People v. Coppez , 93 N.Y.2d 249, 689 N.Y.S.2d 692, 711 N.E.2d 970 (1999). As a result, adjournments, extensions of time, or a stay of execution of a warrant issued by the Court will excuse the defendant's failure to appear on that date. People v. Coppez , 93 N.Y.2d 249, 689 N.Y.S.2d 692, 711 N.E.2d 970 (1999).
In the present case, the salient facts are not dispute. The dispute concerns how the law applies to the facts. Instead, the dispute is whether: (a) there was a "criminal action" or "criminal proceeding" pending against the defendant between the date of her sentence (August 26, 2020) to the date of the filing of the declaration of delinquency (October 8, 2020); (b) this Court's notices to appear on September 29, 2020 and October 8, 2020, constituted an order of the Court or merely a request for the defendant to appear; and (c) the defendant was released from custody, either on bail or on her own recognizance, prior to her November 30, 2020 arraignment, on the condition that she return to this Court in connection with a pending criminal action or criminal proceeding. For the reasons set forth below, this Court finds that, if proven at trial, the criminal information is legally and factually sufficient to support the charge of Bail Jumping in the Third Degree.
The Criminal Action Terminated at Imposition of Sentence
The defendant correctly notes that, pursuant to CPL 1.20(16)(a) and (c), a "criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court ... and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case. " CPL 1.20(16) (emphasis added). Thus, the underlying "criminal action" of Criminal Possession of a Controlled Substance in the Seventh Degree filed against this defendant terminated on August 26, 2020, with her sentence to a conditional discharge. See e.g., People v. Fann, 47 Misc. 3d 416, 417, 1 N.Y.S.3d 771 (Sup. Ct., Queens County, 2015) (a CPL 730.50 determination that the defendant was not competent for a violation of probation hearing did not require dismissal of the underlying misdemeanor conviction because CPL 730.50 applies only to "criminal actions" and the original criminal action terminated with the defendant's sentence to probation); Matter of Darvin M. v. Jacobs , 69 N.Y.2d 957, 959, 516 N.Y.S.2d 641, 509 N.E.2d 336 (1987) (the underlying criminal action terminated with the defendant's sentence to probation and subsequent violation of probation petition constituted a "criminal proceeding" not a "criminal action."). Based on the foregoing, the defendant is correct that the original "criminal action" against the defendant had terminated with the defendant's sentencing on August 26, 2020.
A Criminal Proceeding Was Still Pending After Sentence
However, the defendant's assertion that there was no "criminal proceeding" pending prior to the Court's filing of the declaration of delinquency on October 8, 2020, is without merit. The termination of the underlying "criminal action" at sentencing does not necessarily terminate all other pending "criminal proceedings."
See; CPL 410.20, Practice Commentaries, Prof. Peter Preiser; Penal Law § 60.01(b). Instead, a sentence of a conditional discharge or a probation is a revocable sentence and "is not deemed final during continuance of the period of probation (see Penal Law, § 65.00[3] ) or the period of conditional discharge (see id. , § 65.05[3]), since the sentence is subject to the possibility of revocation (see Penal Law § 60.01[2], CPL § 410.70[5] ), or to modification or expansion of the conditions." CPL 410.20, Practice Commentaries, Prof. Peter Preiser. See also, Correction Law § 700(1)(c) (a "revocable sentence" means ... a sentence of probation or of conditional discharge imposed pursuant to the penal law ..."); People v. Keefe , 131 A.D.2d 937, 516 N.Y.S.2d 531 [3d Dept. 1987] (The Penal Law recognizes three types of revocable sentences: probation, conditional discharge and an intermittent term of imprisonment in contrast with a sentence of definite and indeterminate terms of imprisonment which are not subject to modification). In fact, Penal Law § 60.01(b) codifies the proposition that a "revocable sentence shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with the provisions of the article under which it was imposed, but for all other purposes shall be deemed to be a final judgment of conviction." (Emphasis added).
In the present case, the Court ordered the defendant to appear post-sentence to demonstrate her compliance with the terms of the Court's conditional discharge and to provide proof of her drug and alcohol evaluation. This Court was, therefore, supervising the defendant's compliance with her conditional discharge, and was having the defendant personally appear with proof of her compliance. A Court's post-sentence supervision of a defendant's compliance with his or her sentence of a conditional discharge, and the requirement that the defendant appear in court to demonstrate his or her compliance, meets the definition of a "criminal proceeding" under CPL 1.20(18). More specifically, CPL 1.20(18) defines a "criminal proceeding" to be "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action , either of this state or of any other jurisdiction, or involves a criminal investigation." [ CPL 1.20(18) ] (emphasis added). Based on this definition, a court's post-sentence order directing the defendant to appear to provide proof of compliance with the terms of her conditional discharge constituted an on-going "criminal proceeding," because this proceeding "occurs in a criminal court and is related to a ... completed criminal action . " CPL 1.20(18) (emphasis added).
Here, defense asserts that there were no "criminal proceedings" pending in this case because the Declaration of Delinquency was not filed until October 8, 2020 [Pilatzke Affirmation ¶s 13-15]. The defendant argues that a "criminal proceeding" requires the filing of a new instrument or document, such as a declaration of delinquency or a violation of probation petition, and only after that instrument is filed is the "criminal proceeding" commenced [Pilatzke Affirmation ¶s 13-15]. The defendant's assertion is without merit.
While a "criminal proceeding" can commence with the filing of a motion, application, appeal, petition or a declaration of delinquency, a criminal proceeding can also occur with the filing of the terms of a conditional discharge and a notice directing the defendant to personally appear to provide proof of compliance with the terms of the conditional discharge. Unlike a "criminal action," a "criminal proceeding" does not require the filing of some form of accusatory document or instrument with the court to be commenced. CPL 1.20(16) and (18). Instead, "a ‘criminal proceeding’ may involve, for example, a grand jury ‘criminal investigation’ which may take place before the filing of an accusatory instrument ." CPL 1.20, Practice Commentaries, William Donnino (emphasis added). Furthermore, while a "criminal action" ends "with the imposition of sentence or some other final disposition in a criminal court," the term "criminal proceeding" includes "any appellate or other post-judgment proceeding challenging a judgment or sentence." CPL 1.20, Practice Commentaries, William Donnino (emphasis added). Thus, by definition, a "criminal proceeding" includes all post-judgment or post-sentence court proceedings on the completed criminal action, including the Court's post-sentence supervision of a defendant.
The fact that a "criminal proceeding" commences upon the filing of the filing of the Order of Conditional Discharge and the notice directing the defendant to subsequently appear to provide proof of compliance with his or her sentence is supported by CPL §§ 410.20 and 410.40. Under CPL § 410.20(1), the court may "modify or enlarge the conditions of a sentence of probation or conditional discharge at any time prior to the expiration or termination of the period of sentence." More importantly, CPL 410.20 does not require the formal filing of a petition, declaration of delinquency or other instrument alleging a violation for the court to exercise its jurisdiction to modify or enlarge the conditions of a conditional discharge or the terms of probation. See; CPL 410.20, Practice Commentaries, William Donnino CPL 410.20(1). Instead, where the court intends to reduce or eliminate conditions of probation or a conditional discharge, the court merely needs to provide the defendant with notice of the proceeding. CPL 410.20(1). Where the court intends to enlarge the defendant's terms of probation or conditional discharge, the defendant must be present and have an opportunity to be heard. CPL 410.20(1). See also; CPL 410.20, Practice Commentaries, William Donnino CPL 410.20 (the statute "does not require any evidentiary hearing or any finding of a violation of previously imposed conditions as a prerequisite to enlarging the conditions that were imposed at the time of sentence. All that is required is a personal appearance by the defendant, to assure that the defendant has properly been made aware of the additional requirement or restriction."); Matter of Pirro v. Angiolillo , 89 N.Y.2d 351, 356, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996] (holing that, under CPL 410.20(1), "[t]he court may modify or enlarge the conditions of a sentence of probation" without notice to the People, although the defendant must be notified and be personally present if the modification is adverse to him); People v. Pondi , 65 Misc. 3d 1206(A), 118 N.Y.S.3d 383 [County Ct., Sullivan County, 2019] (At any time after sentence is pronounced and probation instituted, the court may adjust the conditions of probation to suit the current circumstances by eliminating conditions imposed at sentence or adding new ones as the court considers necessary and appropriate). Thus, in People v. Franco , 69 A.D.3d 981, 983, 891 N.Y.S.2d 724 [3d Dept. 2010], the Appellate Division, Third Department, found that the trial court may enlarge of the terms of the defendant's conditional discharge or probationary sentence based on a "request" from probation, provided that the defendant is given notice and an opportunity to be heard, and provided that the Court's record establishes that the additional conditions imposed "were ... tailored in relation to the offense[s], and were reasonably related to defendant's rehabilitation." People v. Franco , 69 A.D.3d 981, 983, 891 N.Y.S.2d 724 [3d Dept. 2010].
Furthermore, CPL 410.40(1) provides that the "court may at any time order that a person who is under a sentence of probation or of conditional discharge appear before it." Similarly, this section does not require the filing of a declaration of delinquency, a violation of probation petition, or similar instrument accusing the defendant of a violation of his or her sentence for the court to order the defendant to appear to demonstrate compliance with his or her terms of probation or the conditional discharge. In fact, courts regularly require a defendant to appear, post-sentence, to demonstrate proof of compliance with her or her terms of probation or conditional discharge, especially where the defendant has been ordered to provide proof of payment of restitution, performance of community work service, or attendance at mandated treatment.
Under the defendant's theory, a requirement of a sentence of probation or a conditional discharge mandating that a defendant regularly appear at specialty part of the court, such as a domestic violence term, would not constitute a "criminal proceeding" and any notice directing the defendant to appear would merely constitute a request to appear [Pilatzke Affirmation ¶14]. Certainly, a court mandated post-sentence appearance to ensure that the defendant is complying with the terms of his or her sentence of probation or a conditional discharge constitutes an exercise of jurisdiction over the defendant, and such an exercise of jurisdiction can only occur where there is a pending criminal action or criminal proceeding.
Furthermore, contrary to defense's argument, the Court does not lose jurisdiction of a defendant sentenced to a conditional discharge or probation until a declaration of delinquency is filed [Pilatzke Affirmation ¶s 14-15]. Instead, the court retains jurisdiction over the defendant during the period of the conditional discharge to ensure his or her compliance with the terms of sentence and/or to modify or enlarge those terms. See; Nowakowski v. New York, 835 F.3d 210, on remand, 2018 WL 6421056 (2d Cir., N.Y., 2016) ( holding that a federal habeas petitioner, who was sentenced to one-year conditional discharge with requirement to perform one day of community service for second-degree harassment, was "in custody" within the meaning of habeas statute, and therefore federal court had jurisdiction over petition, because the petitioner was required to complete service by particular date and report to criminal court upon completion , district attorney sent notice commanding petitioner to appear at particular location on particular date and time without ability to reschedule, and criminal court retained jurisdiction over conditional discharge for year); People v. Coleman , 11 Misc. 3d 1019, 1022, 812 N.Y.S.2d 857 [Sup. Ct., Kings County, 2006] (By permitting defendant to attend a 32—week program, the Court was using the batterer intervention program as a monitoring mechanism while the case was pending as there was no other way to supervise the defendant in Pennsylvania from New York City); People v. Twist , 54 Misc. 3d 377, 381, 44 N.Y.S.3d 688 [City Ct., City of Canandaigua, 2016] (the court retains jurisdiction on a conditional discharge to adjudicate any violations of the condition of maintaining an Ignition Interlock Device for a period of 12 months); People v. Amaro, 79 Misc. 2d 499, 501, 358 N.Y.S.2d 900 [Sup. Ct., New York County, 1974] (holding that a notice to appear may be utilized by the probation court without first filing a declaration of delinquency, and, indeed, it may be used where a court does not have the requisite ‘reasonable cause’ to declare a probationer delinquent or to issue a bench warrant).
Contrary to the defendant's assertion, this Court's notices for the defendant to appear post-sentence constituted orders of the court and were not merely "requests" for the defendant to appear [Pilatzke Affirmation ¶s 14-15]. CPL § 410.40(1) specifically states that an order for the defendant to appear on his or her conditional discharge "may be in the form of a written notice, specifying the time and place of appearance, mailed to or served personally upon the defendant as the court may direct. " Id. (emphasis added). In fact, CPL § 410.40(1) states that "[w]hen the order is in the form of such a notice , failure to appear as ordered without reasonable cause therefor constitutes a violation of the conditions of the sentence irrespective of whether such requirement is specified as a condition thereof." Id. (emphasis added). As a result, this Court's notices of appearance, which directed the defendant to personally appear on September 29 and October 8, 2020, met the requirements of CPL 410.40 and constituted orders of the court.
The defendant's reliance on People v. Wilder , 93 N.Y.2d 352, 712 N.E.2d 652, 690 N.Y.S.2d 483 (1999) for the proposition that liability on a charge of Bail Jumping Third Degree cannot be maintained unless the defendant fails to appear for a period of more than thirty (30) days after he or she was arraigned on the declaration of delinquency is misplaced [Pilatzke Affirmation ¶s 18, 21]. Here, the defendant asserts that the charge of Bail Jumping in the Third Degree requires a new arraignment on a declaration of delinquency and the issuance of a new securing order before liability for a bail jumping charge will attach [Pilatzke Affirmation ¶s 18-21]. This analysis is incorrect for several reasons. First, on August 26, 2020, this Court did issue a securing order, placed on the record, after the defendant's sentence, which released her from custody upon her own recognizance with an order directing her to appear on September 29, 2020 for proof of compliance. Second, a securing order placed on the record that releases a defendant from custody upon her own recognizance, without non-monetary conditions, does not require a formal writing. See, CPL 510.50(5) [a "securing order" means "an order of a court committing a principal to the custody of the sheriff or fixing bail, where authorized, or releasing the principal on the principal's own recognizance or releasing the principal under non-monetary conditions."]; CPL 500.10(2) [A court releases a principal on his or her own recognizance when, having acquired control over the principal's person, it permits the principal to be at liberty during the pendency of the criminal action or criminal proceeding involved upon condition that the principal will appear at court whenever the principal's attendance may be required and will at all times render the principal amenable to the orders and processes of the court]. Thus, where the defendant's future court attendance at a criminal action or criminal proceeding is or may be required, the "court shall, in accordance with this title, by a securing order release the principal on the principal's own recognizance, release the principal under non-monetary conditions, or, where authorized, fix bail or commit the principal to the custody of the sheriff." CPL 510.10(1). Very simply, nothing in these sections requires the securing order to be in a certain form or format, and a securing order which was placed on the record is sufficient, especially where, as here , the defendant was merely released from custody upon her own recognizance without any non-monetary conditions. CPL 530.20(1). Third, the Court's securing order issued on the record on August 26, 2020 continued, because there was still a pending "criminal proceeding" related to the original criminal action. See, People v. Brannon, 41 Misc. 2d 307, 245 N.Y.S.2d 101 [City Court, Bronx County, 1963] (Where the defendant posted a modest cash bail and he later pled guilty, was fined, and the court gave him 2 weeks to pay the fine, then failed to returned, the court properly secured and held the cash bail after sentence then applied the cash bail to the unpaid fines); Propriety of Applying Cash Bail to Payment of Fine , 42 A.L.R.5th 547 (Originally published in 1996) ; Bail: Duration of Surety's Liability On Pretrial Bond, 32 A.L.R.4th 504 (Originally published in 1984). Thus, a court releases a principal on his or her own recognizance when, having acquired control over the principal's person, the court permits him or her to be at liberty during the pendency of the criminal action or proceeding involved upon condition that principal will appear thereat whenever the defendant's attendance may be required. CPL 500.10(2). As applied in this case, the term "Principal" means "a defendant in a criminal action or proceeding" who may be "compelled to appear before a court for the purpose of having such court exercise control over the principal's person to secure the principal's future attendance at the action or proceeding when required, and who in fact either is before the court for such purpose or has been before it and been subjected to such control." CPL 500.10(1). This is exactly what occurred with the defendant in the present case. In People v. Wilder, the Court of Appeals never held that bail jumping liability will only accrue after an arraignment on a declaration of delinquency or violation of probation petition. Instead, the holding in Wilder explained the definitional differences between a Bail Jumping First Degree and Bail Jumping Second Degree charge. In Wilder, the court explained that the crime of bail jumping in the first degree is differentiated from the lesser offenses in that the court order that the defendant violated must have conditioned his release from custody, or continued liberty in connection with a pending indictment for a class A or B felony. Id. When the defendant, in Wilder , was originally released by court order on December 29, 1995, there was no condition that he reappear in connection with a pending indictment, because the indictment had not yet been returned. Id. at 359, 690 N.Y.S.2d 483, 712 N.E.2d 652 [emphasis added]. As a result, the Court held that the "Defendant's failure to appear on March 8, 1996, therefore, could not trigger liability for first degree bail jumping, but did create liability for the lesser offense of second-degree bail jumping, which requires that defendant failed to meet a condition imposed in connection with a pending felony complaint. Id. at 359, 690 N.Y.S.2d 483, 712 N.E.2d 652. See also, People v. Palacios , 185 Misc. 2d 773, 713 N.Y.S.2d 893 [Sup. Ct., New York County, 2000].
In the present action, on August 26, 2020, the defendant was convicted on the charge of Criminal Possession of a Controlled Substance in the Seventh Degree [ Penal Law § 220.03 ]. On that same date, the defendant was sentenced to a conditional discharge, which required the defendant to obtain and file a drug and alcohol evaluation with this Court by September 29, 2020. The conditional discharge order was served on the defendant on August 26, 2020. The Defendant also signed a notice of adjournment on August 26, 2020, which indicated that her case was adjourned to September 29, 2020 for a treatment evaluation. The notice of adjournment warned that "Your Failure to Appear in Court on the above Date May Result in a Bench Warrant Being Issued for Your Arrest ..." The defendant failed to appear on September 29, 2020 and failed to provide the Court with the required evaluation. On September 29, 2020, a second notice to appear was mailed to the defendant, which directed the defendant to appear on October 8, 2020. This notice stated that if "you fail to personally appear in court on the rescheduled date as indicated above, the court will issue a warrant for your arrest ..." The notice further stated, "You may also be subject to additional penalties under the New York State Penal Law without further notice." On October 8, 2020, the defendant again allegedly failed to appear, and the declaration of delinquency was filed together with a third notice to appear for the defendant's arraignment on October 15, 2020. On October 15, 2020, the defendant again failed to appear, and a warrant was issued. On November 30, 2020, the defendant was arrested on the warrant and, on that date, the new charge of Bail Jumping in the Third Degree was filed against the defendant.
These facts, if true, are facially sufficient to support the charge of Bail Jumping in the Third Degree. A "criminal proceeding" was pending on after the defendant's sentence. More specifically, this Court ordered the defendant to appear to demonstrate her compliance with the terms of her sentence. See; CPL § 1.20(18) ; CPL § 410.40 ; People v. Palacios , 185 Misc. 2d 773, 713 N.Y.S.2d 893 [Sup. Ct., New York County, 2000] ; Matter of Darvin M. v. Jacobs , 69 N.Y.2d 957, 959, 516 N.Y.S.2d 641, 509 N.E.2d 336 [1987]. Finally, the defendant's assertion that less than 30 days passed from her alleged failure to appear is without merit. The time between the last date for her appearance (October 15, 2020) and the date of her arrest on this Court's warrants (November 30, 2020) exceeds 30-days.
Based on the foregoing, this Court holds that the misdemeanor information, when read together with filed documentation supporting the information, is factually and legally sufficient to provide reasonable cause to believe that the defendant committed the offense of Bail Jumping in the Third Degree, and the non-hearsay allegations of the factual part of the information establish, if true, every element of the offenses charged and the defendant's commission thereof. [ CPL § 100.40 ]. This court's holding is supported by the Appellate Division, Third Department's recent decision in People v. West, 189 A.D.3d 1981, 139 N.Y.S.3d 413 (3d Dept. 2020). In West, in 2016, the defendant pleaded guilty to criminal mischief in the third degree and was placed on interim probation. In January 2017, she faced new charges and a violation of probation petition was filed alleging that she had violated the terms of her interim probation. Id. The defendant was found to have violated her interim probation after a hearing, and that matter was adjourned for sentencing. In May 2017, a plea bargain agreement was reached, and defendant pleaded guilty to Assault in the Second Degree and was sentenced to a prison term of 3½ years to be followed by 3-years of post-release supervision. Id. She was also sentenced to a concurrent jail term of one year upon her 2016 conviction of Criminal Mischief in the Third Degree. Pursuant to the plea agreement, Hon. Peter Feldstein, Hamilton County Court Judge, gave the defendant five days to put her affairs in order before surrendering herself to begin serving her jail sentences. Id. Thus, the trial court had imposed the sentences, but allowed the defendant to remain at liberty for five days. The defendant failed to appear as directed and was apprehended in Florida several months later and was then charged in an indictment with Bail Jumping in the Second Degree. Id. Following unsuccessful efforts to dismiss the indictment or reduce the charge, defendant pleaded guilty as charged. The County Court sentenced defendant, as a second felony offender, to a prison term of 1½ to 3 years to run concurrently with her 2017 sentences. Id. Defendant appealed the judgment convicting her of Bail Jumping in the Second Degree on the grounds that (a) Defendant could not have committed bail jumping in the second degree because there was no pending felony charge against her at the time of her nonappearance as the criminal action against defendant terminated upon the imposition of her sentence, and her subsequent nonappearance was not connected to an appeal or any other criminal action, and (b) the indictment was jurisdictionally defective, because the indictment alleged acts that "simply do not constitute a crime" or fails to allege acts "constituting every material element of the crime charged" (i.e., since there was no pending felony charge after sentence, the defendant's failure to appear did not constitute a crime or meet the essential elements of the crime. Id.
The Appellate Division held that the defendant's guilty plea precluded her appeal on the first issue. Id. However, the Appellate Division did issue a decision on the second issue finding that the indictment was not defective. The Appellate Division held that the indictment was not jurisdictionally defective since it specifically cited Penal Law § 215.56 as the basis for the charge, which "operate[d] without more to constitute allegations of all the elements of the crime." Id. , citing, People v. Cohen , 52 N.Y.2d 584, 586, 421 N.E.2d 813, 439 N.Y.S.2d 321 [1981], People v. D'Angelo, 98 N.Y.2d 733, 735, 780 N.E.2d 496, 750 N.Y.S.2d 811 [2002]; People v. Hummel-Parker , 171 A.D.3d 1397, 1398, 97 N.Y.S.3d 539 [2019]. The Appellate Division further held that the indictment was not defective because "a conviction occurs upon a plea or verdict of guilty, but the underlying criminal action remains pending until sentencing, the indictment alleged acts constituting bail jumping in the second degree by accusing defendant of failing to appear "in relation to a conviction." Id ., citing, CPL 1.20[13]—[16], People v. Gilleo, 39 A.D.3d 560, 562, 835 N.Y.S.2d 221 [2007].
In the present case, the misdemeanor information is similarly not jurisdictionally defective. While the defendant had been sentenced on the underlying charge, she was released and ordered to return to provide proof of her compliance with her sentence. Moreover, the misdemeanor information affirms that the factual portion of the accusatory instrument is based on Officer Tanner's "personal knowledge." The Information is also verified by Officer Tanner under Penal Law § 210.45. Based upon the foregoing, Officer Tanner has subscribed and verified the misdemeanor information when he placed his signature on the document. People v. Riviere , 21 Misc. 3d 847, 849, 864 N.Y.S.2d 904 [County Ct., Albany County, 2008] (reversing the City Court's dismissal of the accusatory instrument as being facially insufficient on the grounds that the complainant lacked firsthand knowledge of the facts in the complaint, and holding that "by declaring that the facts as set forth in the ‘to wit’ part of the information were based upon her ‘own knowledge and observations’ she adopted the facts as set forth in the information as her own.").
Furthermore, the People correctly note that this Court may take judicial notice of its own dockets, orders, and notices when evaluating the facial sufficiency of an accusatory instrument. People v. Sowle, 68 Misc. 2d 569, 327 N.Y.S.2d 510 (County Court Fulton County 1971) ; People v. Suarez , 51 Misc. 3d 620, 624 [Crim. Ct., City of New York, 2016] ; People v. Gurnett , 59 Misc. 3d 975, 75 N.Y.S.3d 811 [Just. Ct., Town of Webster, 2018] (denying the defendant's motion to dismiss for facial insufficiency on the grounds that the Court would take judicial notice of public record indicating that defendant was present when order of protection was issued in pending case, and that the allegations in the Complaint, when combined with judicial notice, rendered the information sufficient to charge defendant with criminal contempt in the second degree). This Court will, therefore, take judicial notice of this Court's October 15, 2020 Bench Warrant, the Court's October 8, 2020 Declaration of Delinquency, the Defendant's August 26, 2020 Notice of Adjournment, which was signed on the record and required the defendant to appear with her treatment evaluation on September 29, 2020, and this Court's Conditional Discharge dated August 23, 2020, which required the defendant to provide a copy of her Drug/Alcohol evaluation to the Court by September 29, 2020 in case file No.: CR-00503-20.
The Court has considered the defendant's remaining arguments and finds them to be without merit. Based on the foregoing, the Defendant's motion to dismiss is DENIED.