People v Smith

[*1] People v Smith 2009 NY Slip Op 51210(U) [23 Misc 3d 1140(A)] Decided on June 16, 2009 Criminal Court Of The City Of New York, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 16, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Ronnie Smith, Defendant



2008CN005231



or Defendant: Ronald Saffner, Esq., 110 Wall St., 11th Fl., NY, NY 10005 (212) 619-6030.

For the People: NY County District Attorney's Office by ADA Michael Pasinkoff, One Hogan Place, NY,NY 10013 (212) 335-4340.

Richard M. Weinberg, J.

Defendant is charged with Loitering for Prostitution as a B misdemeanor (Penal Law §240.37[2]). He was arraigned on August 11, 2008. On January 20, 2009, defense counsel made an oral application for dismissal pursuant to CPL §30.30. In response to the oral application, the People conceded that CPL § 30.30 time had expired and requested a "stay of sealing for 30 days". The case was dismissed and sealing was stayed for 30 days. One week later the People moved to reargue the motion, alleging that the CPL §30.30 concession had been in error.

Under the Criminal Procedure Law , when a defendant moves to dismiss pursuant to CPL §30.30, the People are entitled to a written motion on reasonable notice. In some cases, it is apparent from a cursory examination of the file that the CPL §30.30 time has expired. In those instances, an informal and expedient calendar practice has evolved wherein the People waive their right to a written motion and concede the CPL §30.30 issue in exchange for a "stay of sealing" for 30 days. Pursuant to this informal but well-established calendar practice, this "stay of sealing" is understood to mean that the People reserve the right to reargue the motion within 30 days if further investigation reveals that the CPL §30.30 concession was made in error. In the vast majority of cases, no motion for reargument is made, the dismissal stands and all parties are spared the unnecessary formality of extended written motion practice and additional calendar appearances.

While there is nothing in the Criminal Procedure Law which expressly authorizes this [*2]practice, there is nothing which expressly prohibits it. Where, as here, the Court has the power to entertain the motion in the first instance, it has the inherent power to re-hear it upon prompt application and to modify or change its decision. (Peo. ex rel. Imbruglia v Jackson, 8 AD2d 651, aff'd 9 NY2d 767; see also People v Sanchez, 8 Misc 3d 900.)

In Imbruglia , Supreme Court dismissed three counts of an indictment on the ground that there was insufficient evidence before the Grand Jury. Upon reargument the Court reversed itself and reinstated the dismissed counts. On appeal, defendant argued that Supreme Court had lost jurisdiction when it dismissed the counts and that it could not regain jurisdiction by granting an application for reargument in the absence of specific statutory authority. The Appellate Division rejected that argument and upheld the inherent authority of a Court to re-hear a motion and modify or change its decision.

In Sanchez, Criminal Court ordered a case dismissed and sealed upon the People's concession that CPL §30.30 time had expired. Later that same day the People informed the Court that the concession had been in error and the Court restored the case to the calendar. The Sanchez Court found that the sealing provisions in the Criminal Procedure Law provided a 30 day window before any sealing order became effective. Accordingly, there was no requirement for an unsealing order before the case could be restored within that 30 day period. The Sanchez Court, citing People v Richardson (100 NY2d 847), also noted the inherent power of a Court to correct its records in order to conform the record to the truth.

In this case, the People promptly discovered their error and promptly moved for re-argument. The People's papers establish that the oral motion had been granted based upon a mistaken understanding of the record which was shared by all the parties, i.e., that the delay in the case had been caused by the People's failure to timely file and serve a Response and VDF. The transcripts provided to the Court by the People clearly establish that the People's Response and VDF had been timely filed and served and that the subsequent adjournments up to January 20, 2009 were not chargeable to the People. The entire period from the date of arraignment to January 20, 2009 is excluded as delay caused by motion practice. (CPL §30.30 [4] [a]; People v Green, 90 AD2d 705, lv dn 58 NY2d 784.) The People are charged with the 7 day delay from the CPL 30.30 concession on January 20, 2009 to the application to reargue made on January 27, 2009. All subsequent time is excluded as delay cause by additional motion practice.

The People are charged with 7 days. Since this is well within the 60 day statutory allowance for a B misdemeanor, defendant's motion to dismiss is denied.

This constitutes the decision and order of the Court. [*3]

Dated:___________________________

New York, New YorkJudge of the Criminal Court