People v Bellinger
Annotate this CaseDecided on January 31, 2006
Criminal Court of the City of New York, Kings County
The People of the State of New York,
against
James Bellinger, Defendant.
2005KN031678
John H. Wilson, J.
Defendant is charged with Assault in the Third Degree (PL Sec. 120.00), and 4 counts of Criminal Possession of A Weapon in the Fourth Degree (PL Sec. 261.01(1), both Class A misdemeanors, Menacing in the Third Degree (PL Sec. 120.15), a Class B misdemeanor, and Harassment in the Second Degree (PL Sec. 240.26), Unlicensed Firearms (AC 10-131(A)), Possession of Pistol Ammunition (AC 10-131(I)(3)), and Permits for Possession and Purchase of Rifles and Shotguns (AC 10-202), all violations.
By motion dated August 24, 2005, Defendant seeks dismissal of the Criminal Court Complaint pursuant to CPL Sec. 170.40 and in the interests of justice pursuant to People v. Clayton, 41 AD2d 204, 342 NYS2d 106 (2nd Dept., 1973). Defense counsel argues for dismissal on two particular grounds; 1) the alleged mental instability of the complainant, and 2) the fact that the weapons recovered from Defendant's apartment at the time of his arrest are properly registered and licensed in North Carolina.
Defendant also seeks suppression of the weapons recovered if his motion to dismiss is not granted.
The Court has reviewed Defendant's motion, as well as a response from the People dated October 31, 2005, and a Reply Affirmation submitted by Defendant dated November 21, 2005.
For the reasons stated below, Defendant's motion to dismiss is denied. The motion to suppress the property recovered at the time of his arrest is granted to the extent of ordering a pretrial hearing at which the admissibility of the People's evidence will be considered. [*2]
STATEMENT OF FACTS
On May 17, 2005, at the Defendant's home located at 6921 Ridge Blvd, County of Kings, City and State of New York, Defendant is alleged to have kicked and punched Ms Eva Gonda "about the face and arms" at about 2:00 PM. The Police were contacted, and approximately two hours later, while Police Officer Lucy Rosa was effecting the arrest of the Defendant, she recovered "four handguns, two rifles, and assorted ammunition...from inside the Defendant's residence."
In his moving papers, Defendant asserts that Ms Gonda suffers from "bipolar disorder" and has previously been hospitalized for her mental disorder. Defendant also asserts that the complainant "is supposed to take various psychoactive medicines to maintain stability...(however) she does not keep up with her prescribed medical regimen."
Defendant admits that the various handguns and rifles were present in his home at the time of their recovery by the Police, however, Defendant asserts that these guns "all...were properly possessed in North Carolina and authorized and licensed there, and...have been previously authorized or licensed in New York City." Defendant concedes that these guns "should have been re-registered locally," and that "the failure to do so was an oversight by the Defendant."
Defendant was arraigned in this matter on May 18, 2005. On or about June 1, 2005, the People served and filed the supporting deposition of complainant Gonda off-calendar with a Statement of Readiness. This converted the first incident alleged in the complaint, that being the alleged assault on Ms Gonda.
On or about July 1, 2005, the People served and filed off-calendar another Statement of Readiness with the supporting deposition of Officer Rosa and ballistics reports for the weapons recovered from Defendant's residence at the time of his arrest, thus fully converting the Criminal Court Complaint into an information.
The Court file indicates that Defendant was then arraigned on the Information on July 13, 2005.
LEGAL ANALYSIS
(A) Timeliness of Defendant's Motion.
As a preliminary matter, the People contend that Defendant's motion should be denied as untimely since it is filed on or about August 24, 2005, more than 45 days after arraignment, pursuant to CPL Sec. 255.20(1). The initial arraignment in this matter was held on May 18, 2005. [*3]
Defendant contends that his motion was timely since it was filed within 45 days of his arraignment on the fully converted complaint, which was accomplished on July 13, 2005.
Defendant's assertion is correct. Once the complaint is converted to an information, a new arraignment on the information is held, and the Defendant has 45 days from the date of that arraignment to file any pre-trial motions. See, CPL Sec. 255.20; People v. Alcindor, 157 Misc 2d 725, 727, 598 NYS2d 449 (Crim. Ct., Kings Cty, 1993); People v. Davis, 163 Misc 2d 947, 949, 623 NYS2d 92 (City Ct, Long Beach, 1995) ("It is clear that following arraignment on the prosecutor's information the defendant is permitted to...file...pre trial motions pursuant to CPL Sec. 255.20.")
Since Defendant's motion was served on the People on or about August 24, 2005, within 45 days of his arraignment on the information on July 13, 2005, Defendant's motion is timely, and will not be denied on this ground.
(B) Defendant's Motion to Dismiss in the Interests of Justice.
CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of "an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof" "as a matter of judicial discretion" if "some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." See, also, CPL Sec. 170.30(g).
The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc 2d 61, 65, 667 NYS2d 895 (Crim. Ct., Bx Cty, 1997) citing People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). In fact, this power is to be "employed cautiously and sparingly." See, People v. Eubanks, 114 Misc 2d 1097, 1098, 454 NYS2d 768 (App. Term, 2d Dept.,1982).
On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See, People v. Boulet, 88 Misc 2d 353, 355, 388 NYS2d 250 (City Ct., Rochester, 1976); People v. Verardi, 158 Misc 2d 1039, 1042, 602 NYS2d 318 (Crim. Ct., Kings Cty, 1993).
When considering the motion, the court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state." See, People v. Gragert, 1 Misc 3d 646, 648, 765 NYS2d 471 (Crim. Ct., NY Cty, 2003).
In the instant case, when the totality of the circumstances is considered, this Court finds [*4]that Defendant has not met his burden to establish that dismissal of this matter would serve the interests of justice in any way. See, People v. Watson, 182 Misc 2d 644, 650, 700 NYS2d 651 ( Crim. Ct., Bronx Cty 1999). The mere fact that Defendant has no prior criminal record and is of an exemplary character, standing alone, is insufficient to justify dismissal of this matter in the interest of justice. See, Gragert, 1 Misc 3d at 649.
Defendant is accused of having assaulted a woman who is alleged to have received psychiatric treatment for "bipolar disorder" previous to the incident outlined in the Criminal Court Complaint. Yet the existence of the complainant's mental health history is not a factor which would compel dismissal of this matter in the interest of justice. At best, this issue is one for the trial court to consider in determining whether or not the complainant is competent to testify at trial. See, CPL Sec. 60.20(1); People v. Doe, 178 Misc 2d 534, 536, 679 NYS2d 508 (S. Ct., Monroe Cty, 1998); People v. Rensing, 14 NY2d 210, 213, 250 NYS2d 401 (1964) ("The mere fact that one is insane or mentally ill does not per se disqualify them from testifying. He may give evidence, provided only that he has sufficient intelligence to understand the nature of the oath and to give a reasonably accurate account of what he has seen and hear vis-a-vis the subject about which he is interrogated.")
Further, given the quantity of weapons and ammunition recovered from the Defendant's residence at the time of his arrest, it would be the antithesis of the interests of the state to accept his explanation that he "forgot" to re-register his guns here in New York, in the context of the instant motion.
Therefore, in light of Defendant's failure to provide any compelling circumstances to justify dismissal of the instant matter in the interests of justice, the motion to dismiss is denied.
( C) Defendant's Motion to Suppress Physical Evidence.
Defendant has moved for suppression of the handguns, rifles and ammunition seized from his residence at the time of his arrest. On the consent of the People, this motion is granted to the extent of ordering a pretrial hearing at which the admissibility of the People's evidence will be considered.
All other arguments advanced by Defendant in his motion dated August 24, 2005 have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.
Dated: Brooklyn, New York January 31, 2006
[*5]
_______________________________ Hon. John H. Wilson, JCC
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