People v Graziano

[*1] People v Graziano 2006 NY Slip Op 50641(U) [11 Misc 3d 1081(A)] Decided on March 29, 2006 District Court, Nassau County Gartner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2006
District Court, Nassau County

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

CARMINE F. GRAZIANO, Defendant



18269/04



Hon. Kathleen Rice, District Attorney, for the People

99 Main Street

Hempstead, NY 11550

Benedict S. Gullo, Jr., Esq., for the Defendant

114 Old Country Rd

Ste. 616

Mineola, NY 11501-4422

Kenneth L. Gartner, J.

The defendant's motion to dismiss the criminal complaint against him, for

facial insufficiency, and on speedy trial grounds, is denied. Because of the allegations made by the prosecutor, however, this case is set down for a hearing to determine whether defense counsel, or the prosecutor, or both, are disqualified from further representation.

The defendant, an individual, is charged with various criminal violations of the

Nassau County Fire Prevention Ordinance found at a former New Hyde Park bar known as "Copperfields." The defendant moves to dismiss the accusatory instrument as facially insufficient, or, alternatively, on speedy trial grounds.

With respect to the defendant's first ground for dismissal, many of the charges are duplicates of those also brought against a now-defunct corporation, Jericho Pub, Inc., which defaulted and was convicted in absentia. The People concede that their only ground for holding the defendant individually liable is his claimed "ownership" of Jericho Pub, Inc.

The defendant's counsel, in his affirmation in support of the motion, asserts that the defendant is not in fact an owner or otherwise in control of Jericho Pub, Inc. A Dun

& Bradstreet report on Jericho Pub, Inc. lists the president as one Richard Edgar, not the name under which this defendant is charged.

A valid and sufficient accusatory instrument is a non-waivable, jurisdictional prerequisite to a criminal prosecution People v. Case, 42 NY2d 98 (1977). Every

information must contain an accusatory part and a factual part (CPL §100.15[1]). The allegations of the factual part of the information together with those of any supporting deposition which may accompany it, must provide the Court with reasonable cause to believe that the defendant committed the offense charges in the accusatory part of the information (CPL §100.40[1][b]). Moreover, non-hearsay allegations of the factual part of the information and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §100.40(1); People v. Alejandro, 70 NY2d 133 (1987); People v. Casey, 95 NY2d 354 (2000). This standard does not require proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses [*2]the same expertise as the officer to conclude that a crime is being or was committed. People v. Henderson, 92 NY2d 677 (1999); People v. Miner, 42 NY2d 937 (1977); People v. Crosby, 91 AD2d 20 (2nd Dep't 1983).

The People in the instant case are required by, inter alia, Penal Law §20.25, to demonstrate as part of their prima facie case that the defendant had sufficient contact with the corporation and the property to justify imposing criminal liability upon him. See, People v. Sakow, 45 NY2d 131 (1978); People v. Artrol, 67 Misc 2d 1087 (Just. Ct., Village of Ocean Beach 1971) (Mehlman, J.), aff'd, 31 NY2d 262 (1972); In Re Kuriansky, 151 Misc 2d 176 (Sup. Ct., Kings Co. 1991) (Gerges, J.); People v. Premier House, Inc., 174 Misc 2d 163 (Crim. Ct., Kings Co. 1997) (Smith, J.).

Once it is established that the defendant is charged based upon actions allegedly taken by him in his capacity with the corporation, issues of sufficiency will be for the trier of fact. As stated by the court in Premier House, supra, 174 Misc 2d at 167, denying a motion to dismiss criminal violations of the New York City window guard law, "[w]hether or not these individual defendants can be deemed to be in control' of the subject premises in their capacities as officers of the board, and whether their proper duties and responsibilities were fully discharged with regard to the window guards in the subject premises, are issues of fact, more appropriately reserved for trial."

However, in Premier House and the other cases cited, the fact that the individual defendants were in fact officers, directors, or otherwise somehow connected with the corporation for whose actions the People sought to hold the individual defendants

criminally liable, was established or not contested. Here, that basic premise is under attack.

The accusatory instrument contains a supporting deposition by an inspector who affirms that upon performing an inspection of the premises, at the time actively

functioning as a bar, and during which he observed "numerous violations," he asked the bartender if he could speak to the owner. He stated that he gave his business card to the bartender. The individual defendant thereafter called the inspector, arranged to and did meet with the inspector at the premises, identified himself as "the owner," and discussed some of the claimed violations with the inspector in detail, in fact explaining how some of [*3]them had come about through his own actions.

The People, in opposing the defendant's motion, not only concede, but affirmatively assert, that they failed to give the defendant the required CPL §710.30 notice of their intention to use the defendant's admission of ownership as made to the inspector, and that they therefore waive the use of it at trial. Nevertheless, they assert, because the statement, as an admission against interest, would constitute an exception to the hearsay rule, it suffices as a non-hearsay allegation sufficient to support the accusatory instrument.

The admission detailed by the inspector in his supporting deposition, whatever its ultimate ability to be used at trial, does constitute evidence falling outside the scope of hearsay exclusion and thus is sufficient to support the accusatory instrument. A statement falling within an exception to the hearsay rule has expressly been held to be sufficient as a "non-hearsay" allegation within the meaning of this requirement. People v. Casey, 95 NY2d 354, 361 (2000). See, People v. Haugen, N.Y.L.J., September 16, 2003, at 23, col. 3 (Crim. Ct., Richmond Co.)(Dufficy, J.)(admission against interest exception utilized to uphold complaint, even acknowledging that defendant might later move to suppress the statement, and that the trial court would have the power, if justified, to grant the motion, thereby rendering it inadmissible at trial); People v. Nakashian, N.Y.L.J., September 13, 2002, at 17, col. 2 (Crim. Ct., Kings Co.)(Saitta, J.)(business records exception); People v. Foster, 190 Misc 2d 625,(Crim. Ct., Kings Co. 2002)(Posner, J.)(excited utterance exception); People v. Rizzo, 189 Misc 2d 649 (Dist. Ct., Nassau Co. 2001)(Kluewer, J.)(prompt outcry exception). The defendant's motion on this ground is therefore denied.

With regard to defendant's second ground for dismissal, i.e., denial of a speedy trial pursuant to CPL §§170.30(1)(e) and 30.30, defendant is entitled to a speedy trial within ninety (90) days of the commencement of this criminal action. CPL §30.30(1)(b).

The defendant, when moving to dismiss the action on speedy trial grounds, bears the burden of proving that there exist various delays that have resulted in more than the statutory maximum passing between the commencement of the action and the People's declaration of readiness. People v. O'Neal, 99 AD2d 844 (2nd Dep't 1984). Once the defendant has shown a delay of greater than the applicable period under CPL §30.30, the [*4]People have the burden of proving that certain periods within that time should be excluded. People v. Berkowitz 50 NY2d 333 (1980). While defendant's attorney acknowledges that CPL §30.30(4) contains excludable periods of time, there is no calculation contained in his affirmation.

The People have provided proof that all adjournments from September 7, 2004 to October 14, 2005 with the exception of one adjournment, have been at defendant's request. Accordingly, except for the one period of time between April 21, 2005, and May 24, 2005, all of that time is charged to the defendant. The People are charged with just 32 days, well within the applicable 90 day period. Defendant's speedy trial motion, therefore, must be, and is, denied.

The People are not required at this juncture to prove the defendant's connection to the property beyond a reasonable doubt. The People, after acknowledging their waiver of the use by them of the admission of his ownership allegedly made by the defendant to the inspector, do nevertheless affirmatively assert that it is their intent to prove their case at trial through an admission as to the defendant's ownership interest in the corporate defendant and/or the property. The People assert that the admission they now intend to use, instead of the one made by the defendant to the inspector, is one made by defense counsel to the assigned Assistant District Attorney. The People have served a CPL §710.30 notice of defense counsel's purported statement.

The People's announced intent to offer an admission allegedly made by defense counsel, in order to prove the case against counsel's client, whether that evidence were to be offered by calling defense counsel, or by calling the assigned Assistant District

Attorney to whom the admission was allegedly made, as prosecution witnesses, could require the disqualification of defense counsel and/or the prosecutor. DR 5-102 ("Lawyers as Witnesses"). See, People v. Limongelli, 156 AD2d 473 (2nd Dep't 1989) (disqualification of defense counsel, whose testimony would likely be required, was necessary, even over the defendant's objection, in order to safeguard the defendant's right to effective representation and, thereby, the integrity of any verdict which might be obtained); People v. Brand, 13 AD3d 820, 823 (3rd Dep't 2004) (defense counsel must withdraw from representation upon learning that he may be called as a witness on a [*5]significant issue other than on behalf of the client, and the testimony will or may be prejudicial to the client); People v. Heber, 192 Misc 2d 412, 423 (Sup. Ct., Kings Co. 2002) (Ambrosio, J.) (defense counsel who was to testify as a material witness on behalf of his client is disqualified from acting as defendant's attorney). See also, 7 NY Jur. 2d, Attorneys at Law §80 (March 2006) ("The advocate-witness proscriptions apply as well to prosecuting attorneys, so that if the prosecutor will be called as a witness for the People, to testify to a disputed material issue, he or she should be disqualified from trying the case. . . ." [citing, People v. Paperno, 54 NY2d 294 (1981)]).

This matter is therefore set down for a hearing on the circumstances of the making of the alleged admission, the admissibility of the alleged admission, and the possible need for disqualifying one or both counsel.

So Ordered.

DISTRICT COURT JUDGE

Dated: March 29, 2006

CC: Kathleen Rice, District Attorney

Benedict S. Gullo, Jr., Esq.



KLG:mc