People v Vargas

[*1] People v Vargas 2016 NY Slip Op 50720(U) Decided on May 4, 2016 Criminal Court Of The City Of New York, Bronx County Montano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2016
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Tommey Vargas, Defendant.



2013BX016979



Appearances of Counsel

The People — Darcel D. Clark, District Attorney, Bronx County by Sarah A. Merry, Assistant District Attorney

Defendant — The Legal Aid Society by Linsey Ruhl, Esq.
Armando Montano, J.

Defendant is charged with Possession of Burglar's Tools (PL § 140.35), Petit Larceny (PL § 155.25), and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant moves for an order 1) dismissing the complaint, pursuant to CPL §§ 100.40 and 170.30(1)(a), as facially insufficient and 2) dismissing the complaint, pursuant to CPL §§ 170.30(1)(e) and 30.30, on speedy trial grounds.

The factual allegations in the accusatory instrument sworn to by the deponent, PO Joseph Walsh read as follows:

Deponent states that [on or about March 23, 2013 at approximately 2:50 AM at corner of Bainbridge Avenue and East 198th Street, County of Bronx, State of New York], he observed defendant extracting mail from a United States Postal Office mailbox in that he observed the defendant insert a device into said mailbox, remove mail and open it. Deponent further states that he observed defendant to have on his person, in his hand one homemade device with a sticky substance on one end and further observed the defendant to have on his person one personal check from said mail that was removed from said mailbox. Deponent is further informed by Postal Inspector Andre Esanna, that he is a lawful custodian of the aforementioned mailbox, and that defendant did not have permission or authority to take, remove, or possess any of the mail in the aforementioned mailbox.

Procedural History

On March 23, 2013, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. The complaint contained the hearsay allegations of Postal Inspector Andre Esanna, who had yet to sign a supporting deposition. Therefore, the case was adjourned to April 10, 2013 for conversion.

On April 10, 2013, this case was scheduled for conversion. The People stated that they were not ready as they had yet to file the necessary supporting deposition. The case was adjourned to June 27, 2013 for conversion.

On April 29, 2013, the People filed with the court and served on defense counsel a copy [*2]of a supporting deposition and a statement of readiness as to all counts. The supporting deposition of Postal Inspector Andre Esanna was signed by an "Andre Esasannason" on April 26, 2013.

On June 27, 2013, the People stated that they were ready as they had filed a statement of readiness along with a supporting deposition on April 29, 2013. Although defense counsel acknowledged receipt of the supporting deposition, she stated that it appeared to have been signed by someone named Julie and not by Andre Esanna, the informant identified in both the complaint and the supporting deposition. Defense counsel further asserted that 30.30 time had passed. Judge John Wilson stated that the signature on the supporting deposition appeared to read "Esannason". The People could not confirm whether the Postal Inspector's last name was "Esanna" or "Esaannason". However, the People noted that "the postal inspector would have read the complaint and the supporting deposition under the penalty of perjury and he wouldn't have signed it if it was not him." June 27, 2013 tr at 2, lines 10-13. The People also requested that any motion on speedy trial grounds be made in writing. In response, Judge Wilson stated, "Absent any signed affidavit, this complaint will be dismissed and sealed in 30 days." June 27, 2013 tr at 2, lines 23-24.

The People did not file a signed affidavit and the case was subsequently dismissed.

By decision and order dated May 15, 2015, the Appellate Term reversed Judge Wilson's sua sponte dismissal of the accusatory instrument, reinstated the accusatory instrument, and remanded the case to the Criminal Court for further proceedings. The Appellate Term held that "the dismissal was summary in nature and the People were not prepared to respond to the argument that the supporting deposition of the Postal Inspector was not properly subscribed." People v. Vargas, 47 Misc 3d 146(A), *1 (App Term, 1st Dept. 2015). The Court further noted that "factual issues [remained] as to whether the challenged supporting deposition was properly subscribed and whether speedy trial time has expired." Id.

In accordance with the decision of the Appellate Term, this case was restored to the calendar and scheduled for an appearance on July 14, 2015.

On July 14, 2015, defense counsel indicated to the court that she wished to file a motion to dismiss. The case was then adjourned to September 9, 2015 for motion practice.

After requesting and receiving additional time, defendant filed the instant motion on October 9, 2015. The instant motion has been sub judice since July 14, 2015.

Parties' Contentions

Defendant makes two interrelated arguments in support of dismissal on the grounds of facial insufficiency and the violation of his speedy trial rights. Defendant points out that the complaint contains allegations that Postal Inspector Andre Esanna, the lawful custodian of the mail box, did not give defendant permission to remove any of the mail contained in the mailbox. However, defendant contends that the supporting deposition filed by the People was not duly subscribed as it is signed by someone other than the named informant, Andre Esanna. Since the People have failed to file a corroborating affidavit signed by Postal Inspector Andre Esanna or move to amend the complaint to reflect the correct name of the Postal Inspector identified in the accusatory instrument, defendant argues that the complaint impermissibly remains supported by hearsay allegations. Thus, defendant avers that the accusatory instrument should be dismissed as facially insufficient.

Defendant asserts that 96 days have elapsed since the date of his arraignment, March 23, 2013, and the date this case was dismissed by the Hon. John Wilson, June 27, 2013. Although [*3]CPL § 170.35(1)(a) contemplates the amendment of complaints, defendant submits that the People must do so in a timely manner. Defendant maintains that the People have never sought to amend the complaint by either filing a superseding information or orally amending the complaint so that the names on both the complaint and supporting deposition match. Because the complaint remains defective after 90 days, it is too late for the People to cure the defect.

In opposition, the People argue that the instant motion should be denied as meritless because the supporting deposition was properly subscribed by the informant and thereby cured the hearsay contained in the complaint. The People assert that the information simply contains a typographical error in the spelling of the informant's last name and it is plain to see that that Andre Esanna and Andre Esannason are one and the same. The People further assert that pursuant to General Construction Law § 46, any mark made with the intent to execute a document constitutes a valid signature.

Even though the People contend that the supporting deposition was properly subscribed, they submit the affidavit of Andre Esannason for the court's consideration. The People's Exhibit 1. In his affidavit signed on November 24, 2015, Mr. Esannason identifies himself as the informant who provided information to the deponent officer. Mr. Esannason asserts that he provided information to the deponent officer on March 23, 2013. Thereafter, on April 26, 2013, Mr. Esannason avers that he read the complaint and verified that the facts he provided and contained therein were accurate and true. After reading the complaint, Mr. Esannason asserts that he dated and signed the supporting deposition with the proper spelling of his last name.

The People further argue that the instant motion should be denied since defendant waived his right to make a hearsay objection, one that is non-jurisdictional in nature, by failing to file a written motion to dismiss within 45 days of his arraignment or at least from the date he received the supporting deposition. At no time during the 59 days following the receipt of the supporting deposition on April 29, 2013 and before the erroneous dismissal of this case on June 27, 2013 did defendant file a written motion to dismiss. Once this matter was restored to the calendar on July 14, 2015, defendant waited an additional 88 days to file the instant motion on October 9, 2015. Given the untimeliness of the instant motion, the People submit that this court should reject defendant's facial insufficiency claim.

With respect to speedy trial time, the People contend that they should only be charged with a total of 37 days. Contrary to defendant's assertions, the People argue that they should not be charged with any time after their initial statement of readiness on April 29, 2013, as their statement of readiness was bona fide, made in good faith, and reflected their actual present state of readiness. Although the People steadfastly maintain the validity of the April 26, 2013 supporting deposition, they aver that they are willing and able to file a superseding information and/or a new supporting deposition immediately upon the court's request.

In reply, defendant first notes that on June 27, 2013, Judge Wilson did not immediately dismiss the case. Rather, Judge Wilson provided the People with 30 days to file a corroborating affidavit. For whatever reason, the People failed to do so. Now, two and a half years after the time permitted by the court, the People submit the affidavit of Andre Esannason. Second, defendant asserts that the affidavit should be disregarded as the court's inquiry on a facial sufficiency motion is confined to the four corners of the instrument. When this court examines only the facts alleged in the complaint along with the properly annexed supporting deposition of April 26, 2013, defendant argues that the hearsay defect cannot be cured and the accusatory [*4]instrument must be dismissed as a result.

As to the People's claim that the instant motion should be denied as untimely, defendant points out that CPL § 255.20 provides that all pre-trial motions must be served or filed within 45 days of arraignment. Defendant avers that CPL § 255.20 relates to arraignment on an information rather than a complaint. If a defendant was required to file a motion to dismiss prior to conversion, a defendant would be forced to stop the speedy trial clock before the People possessed a valid information upon which they could proceed to trial. Referring to the minutes of the June 27, 2013 appearance, defendant notes that he has never been arraigned on an information. Consequently, his 45 days have not passed.

Assuming arguendo that this court determines that he should have filed this motion within 45 days of his arraignment on the complaint, defendant submits that the instant motion is still timely pursuant to CPL § 255.20(3). In the case at bar, defendant submits that he was wholly unaware of the defect until after he received the supporting deposition. If he had filed a motion to dismiss off-calendar after receipt of the supporting deposition, the speedy trial clock would have stopped. Defendant asserts that the CPL does not require him to waive 30.30 time by filing an off-calendar motion. On June 27, 2013, the first appearance after the off-calendar filing of the supporting deposition, defendant raised the issue.

Finally, defendant points out that he did not move to dismiss the case on June 27, 2013. Instead, the court dismissed the complaint sua sponte after defense counsel raised the issue as to the signature on the supporting deposition. Since defendant filed the instant motion at the first available opportunity after the case had been restored to the calendar, the motion is timely.

Discussion

At the outset, this court finds that the instant motion is timely and defendant did not waive the hearsay objection. Defense counsel alerted the court and the People as to the discrepancy in the supporting deposition on June 27, 2013, the first appearance after defense counsel received the document. After it was brought to the court's attention, the court sua sponte dismissed the case.

Here, the top count of the accusatory instrument is an A misdemeanor, which is punishable by a sentence of imprisonment of up to one year. PL § 70.15(1). Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony.

"[CPL 30.30] does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly." People v. Sinistaj, 67 NY2d 236, 239 (1986). "Whether the People have satisfied [their 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." People v. Cortes, 80 NY2d 201, 208 (1992).

For CPL § 30.30 purposes, in order for the People to be "ready for trial", the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a [*5]written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. See, People v. Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337. "[P]resent readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence. People v. Caussade, 162 AD2d 4, 8 (1990).

Defendant has met his initial burden "by alleging that the prosecution failed to declare readiness within the statutorily prescribed time period." People v. Luperon, 85 NY2d 71, 77-78 (1995). To survive dismissal, the People must establish sufficient periods of excludable delay. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). "[O]nce the People set forth the statutory exclusions on which they intended to rely, defendant [must] identify the specific legal and factual impediments to those exclusions." People v. Beasley, 16 NY3d 289, 292 (2011).

It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15(3); People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. "Where a court concludes that the non-hearsay allegation requirement has not been met, the appropriate remedy is to permit the People to cure the defect, within the applicable CPL § 30.30 time constraints." People v. Rivera, 45 Misc 3d 386, 391 (Crim Ct, NY County 2014).

In a misdemeanor prosecution, a defendant has a statutory right to be prosecuted by a misdemeanor information. CPL § 170.65(1). Unless a defendant waives prosecution by information, the People must convert the complaint into an information by filing "sufficient supporting depositions...that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant." People v. Flores, 189 Misc 2d 665, 666 (Crim Ct, Queens County 2001). "Requiring that a nonhearsay accusation be filed as a condition precedent is a minimal but significant indication that the prosecution is legitimate. It reduces the possibility that one could be unjustly forced to stand trial by an overzealous or negligent prosecutor based on an indirect, incomplete, or inadequately investigated accusation". People v. Phillipe, 142 Misc 2d 574, 578 (Crim Ct, Kings County 1989); see also, Matter of Edward B., 80 NY2d 458, 464 (1992).

Criminal Procedure Law § 170.30(1)(e) provides that the court may dismiss the accusatory instrument or any count thereof where the defendant has been denied his right to a speedy trial. Therefore, "a defect in a count does not necessarily require dismissal of all counts of a multi-count accusatory instrument." People v. Minor, 144 Misc 2d 846, 848 (App Term, 2d Dept. 1989); see also, People v. Naim, 46 Misc 3d 150(A) (App Term, 1st Dept. 2015); People v. Miglio, 17 Misc 3d 165 (Crim Ct, Kings County 2007). Under partial conversion, each count in a complaint is treated separately for speedy trial purposes.

As stated above, defendant is charged with Possession of Burglar's Tools (PL § 140.35), Petit Larceny (PL § 155.25), and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

"A person is guilty of possession of burglar's tools when he possesses any tool, [*6]instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, under circumstances evincing an intent to use the same in the commission of an offense of such character." PL § 140.35.

"A person is guilty of petit larceny when he steals property." PL § 155.25. A person "steals property" when, with the intent to deprive another of property or to appropriate the same to himself, such person wrongfully takes, obtains, or withholds such property from an owner of the property. PL § 155.05(1).

"A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof." PL § 165.40.

Unlike the charges of PL §§ 155.25 and 165.40, which require the People to establish ownership of the property in question as well as the intent to deprive the owner of the property, there is no such requirement for the charge of PL § 140.35. Possession of burglar's tools prohibits the possession of the instrumentalities of larceny under circumstances which demonstrate use of same in the commission of a larceny. This court finds that the charge of PL § 140.35 has been adequately pled based upon the personal observations of the deponent officer. The accusatory instrument alleges that Officer Walsh observed defendant removing and opening pieces of mail by inserting a homemade device with a sticky substance on the end into a United States Postal Service mailbox. Officer Walsh further observed defendant to be in possession of a personal check that was removed from the mailbox. The filing and service of the statement of readiness on April 29, 2013 effectively stopped the speedy trial clock as to count 1, PL § 140.35. Therefore, as to the charge of PL § 140.35, the People are charged with a total of 37 days for the time period from March 23, 2013 to June 27, 2013.

Dismissal of the remaining two charges hinges on whether the supporting deposition of Andre Esanna but signed by Andre Esannson on April 26, 2013 properly converted the complaint to an information. As correctly noted by defendant, in determining a motion for facial insufficiency, this court's analysis is limited to the four corners of the accusatory instrument and in annexed supporting depositions. People v. Thomas, 4 NY3d 143 (2005). As such, the November 24, 2015 affidavit of Andre Esannason will be disregarded by this court.

A supporting deposition is a "written instrument accompanying or filed in connection with a misdemeanor complaint" that is "subscribed and verified by a person other than the complainant" and "contain[s] factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein." CPL § 100.20. Therefore, "any document offered as a supporting deposition must either refer to the facts in the accusatory instrument or must recite factual allegations which substantially mirror those set forth in the accusatory instrument." People v. Stridiron, 175 Misc 2d 16, 18 (Crim Ct, Queens County 1997). "The usual supporting deposition is merely a statement that the complaining witness has read the accusatory instrument and the facts stated therein are true." People v. Modica, 187 Misc 2d 635, 638 (Crim Ct, Richmond County 2001).

The CPL does not require that the signer of the supporting deposition be the same informant named in the complaint. People v. Negron, 49 Misc 3d 392 (Crim Ct, Kings County 2015). In fact, as explained in People v. Pachesa, 50 Misc 3d 238, 243-244 (Crim Ct, NY County 2015):

The only requirement contained in CPL § 100.20 with respect to identity is that a [*7]supporting deposition cannot be signed by the deponent who swore out the misdemeanor complaint .Any person who has first-hand knowledge of the facts contained in the misdemeanor complaint, and who can truthfully swear that those facts are true based on [his or] her personal knowledge, can sign a supporting deposition even if [he or] she is not the informant referred to in the misdemeanor complaint.

A supporting deposition must also be verified in accordance with CPL § 100.30 in order to "assure a measure of reliability regarding the contents of the [document]." People v. Ackermann, 44 Misc 3d 626, 628 (Sup Ct, Bronx County 2014). Criminal Procedure Law § 100.30(1)(d) provides that a supporting deposition "may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument." "[T]he form notice provides greater practical assurances against misstatements of fact than the more routine and mechanical procedure of swearing before a notary or some other official authorized to take an oath, because the form notice alerts the subscriber thereto of the real and significant possibility of criminal prosecution should the information be proven to be false." People v. Charvat, 8 Misc 3d 13, 15 (App Term, 9th & 10th Jud Dists 2005); see also, Matter of Neftali D., 85 NY2d 631, 635-636 (1995).

Despite the People's assertion that that Andre Esanna and Andre Esannason are the same person, this fact cannot be gleaned from a review of the four corners of the complaint and the supporting deposition. See, People v. Gyalpo, Crim Ct, Queens County, August 20, 2014, Zaro, J., docket No. 2013QN046529. And although a supporting deposition need not be signed by the same informant identified in the complaint, this court finds that in order for the supporting deposition to be valid and effectively convert the corresponding complaint, the signature on the supporting deposition must match the name of the person identified in the supporting deposition.

As a sworn statement of facts, a supporting deposition is akin to an affidavit, which is defined as "[a] voluntary declaration of facts written down and sworn to by a declarant, usu. before an officer authorized to administer oaths." Black's Law Dictionary (10th ed 2014), affidavit (Note: online version). Much like an affidavit purported to be of one person and signed by another is a nullity (Maniscalco v. Slamowitz, 123 A.D. 690 [2d Dept. 1908]; A.B. Medical Services PLLC v. CNA Ins. Co., 2 Misc 3d 138 (A) [App Term, 2d & 11th Jud Dists 2004]), this court finds that the supporting deposition purported to be of Andre Esanna and signed by Andre Esannason is a nullity.

Furthermore, this court is cognizant of the fact that essentially, any mark made by someone with the intent to execute a document would be acceptable as a signature [FN1] . Had the supporting deposition been signed with an "X" or some other symbol, this court would easily find that the supporting deposition was valid and sufficient for purposes of conversion. However, there is a distinction between an informant signing a supporting deposition with an "X" or some other symbol versus signing the document with a different last name. Even if this court accepted that Andre Esanna and Andre Esannason are the same person, this court would [*8]still find that the supporting deposition failed to cure the complaint of hearsay. Signing the supporting deposition with a different last name is a clear indication that Mr. Esannason did not read the complaint or the supporting deposition before verifying the facts contained therein. Had he done so, the first thing he would have noticed is the fact that his name was spelled incorrectly. Verification of the supporting deposition presupposes that the subscriber read and understood the contents of both the supporting deposition as well as the complaint. Bearing in mind the purpose of verification, "[t]he failure to properly sign and verify an accusatory instrument or supporting deposition cannot be regarded as a mere irregularity curable at any later date, after expiration of the speedy trial period." Philippe, 142 Misc 2d at 580.

Since the supporting deposition filed on April 29, 2013 failed to convert the charges of PL §§ 155.25 and 165.40 and more than 90 days have elapsed since defendant was arraigned on the complaint, said charges are dismissed.

Accordingly, the motion by defendant for an order dismissing the complaint is granted to the extent that the charges of PL §§ 155.25 and 165.40 are hereby dismissed.

This constitutes the decision and order of this court.

Dated: May 4, 2016

Bronx, New York

_______________________________

Hon. Armando Montano Footnotes

Footnote 1:Pursuant to General Construction Law § 46, "[t]he term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing."