People v Mahmood
Annotate this CaseDecided on January 3, 2006
Criminal Court of the City of New York, Kings County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Zahid Mahmood, Defendant.
2004KN044625
For the People, Charles J. Hynes, District Attorney, Kings County, by Lisa S. Berk, Esq., Assistant District Attorney.
For the Defendant, Barry Black, Esq.
John H. Wilson, J.
Defendant is charged with Operating a Motor Vehicle While Impaired (VTL Sec. 1192.1), a traffic infraction. Initially, Defendant was also charged with Operating a Motor Vehicle While Intoxicated (VTL Sec.1192.3), an unclassified misdemeanor.
PROCEDURAL HISTORY
By motion dated April 6, 2005, Defendant sought to Dismiss the Criminal Court Complaint on the ground that his right to a speedy trial had been denied.
On May 18, 2005, in open court, the People agreed to the dismissal of VTL Sec. 1192.3, pursuant to CPL Sec. 30.30, and retained VTL Sec. 1192.1. The Court adopted the People's concession, and ruled from the bench that Defendant's April 6, 2005 motion was denied.
Subsequently, on July 11, 2005, Defendant brought another motion to dismiss, asserting that Defendant had been denied his right to a speedy trial of the VTL Sec. 1192.1 charge.
By decision dated September 16, 2005, Defendant's July 11, 2005 motion was denied. The Court found that the People were only charged with a total of 63 days in this matter, [*2]however, the Court also found that since the People had initially charged the Defendant with VTL Sec. 1192.3, an unclassified misdemeanor, the time period applicable to this matter is 90 days.
Now, by motion dated October 17, 2005, the People seek to reargue the dismissal of VTL Sec. 1192.3 on the ground that the People's concession was "harmless error."
In a Response dated November 2, 2005, Defendant argues that the People's mistake in calculating the time applicable to VTL Sec. 1192.3 pursuant to CPL Sec. 30.30 does not constitute a proper ground for restoration of a dismissed charge or case.
For the reasons stated below, the People's motion to reargue is denied.
LEGAL ANALYSIS
In its decision dated September 16, 2005, this Court ruled that Operating a Motor Vehicle While Intoxicated, though an unclassified misdemeanor, is subject to the 90 day time limitation of CPL Sec. 30.30(1)(b). See, People v. Mahmood, NYLJ, 9/29/05, p. 19, col. 3; People v. Condarco, 166 Misc 2d 470, 633 NYS2d 930 (Crim. Ct., Queens Cty, 1995); People v. Matute, 141 Misc 2d 988, 990, 535 NYS2d 524 (Crim Ct., Bx Cty, 1988).
Further, while any analysis of speedy trial "must, as a matter of course, often involve distinct consideration with respect to individual counts of a single accusatory instrument," (People v. Minor, 144 Misc 2d 846, 848 (2nd Dept., 1989)), by the same token, the "People's readiness obligation was fixed by the nature of the accusations at the commencement of the action." See, People v. Matute, 141 Misc 2d 988, 990, 535 NYS2d 524 (Crim Ct., Bx Cty, 1988); People v. Fisher, 167 Misc 2d 850, 635 NYS2d 1002 (Crim. Ct., Richmond Cty, 1995).
Thus, this court concluded, since VTL Sec. 1192.3 was the top count of the Criminal Court Complaint herein at the commencement of this action, 90 days is the time limit applicable to the entire docket. People v. Mahmood, supra ; See, also, People v. Lang, 5 Misc 2d 1021(a), 799 NYS2d 163 (Crim, Ct., Kings Cty 2004).
The Court's review had also indicated that since only 63 days were charged to the People in this matter "it would appear that the People miscalculated the applicable amount of includable time when they dismissed the VTL Sec. 1192.3 charge." See, People v. Mahmood, supra .
Despite this finding, this Court stated as follows:
...while this Court has the inherent power to correct mistakes, and in proper cases, set them aside at any time, this power is be exercised only upon a proper showing that said mistake is the result of trickery, deceit, coercion, or fraud and misrepresentation. See, People v. Farina, [*3]65 Misc 2d 970, 971, 319 NYS2d 166 (Dist. Ct., Nassau Cty, 1971). In the absence of any showing in this case of any of the above-stated factors, it would not be appropriate for this Court to conduct any further review of this issue.
Therefore, the People's May 18, 2005 decision to dismiss VTL Sec. 1192.3, the unclassified misdemeanor, pursuant to CPL Sec. 30.30 will remain the law of this case.
People v. Mahmood, supra
The People now seek to restore the VTL Sec. 1192.3 charge to the docket on the basis that "the Criminal Procedure Law does not prohibit the reinstatement of a misdemeanor prosecution that has been dismissed pursuant to CPL Sec. 170.30," further asserting that "there are no double jeopardy issues involved in this case since the dismissal occurred during pre-trial practice, and neither a jury nor any witness was sworn." People's October 17, 2005 motion, page 4, citing People v. Krum, 68 Misc 2d 763, 328 NYS2d 167 (Crim. Ct., NY Cty, 1972), aff., Krum v. Hogan, 69 Misc 2d 656 (1972).
Yet, as Defendant correctly points out in his response, the issue here is not whether or not double jeopardy applies. The Krum case involved a dismissal on the People's motion, not, as is presented here, a dismissal on the People's concession to Defendant's CPL Sec. 30.30 motion. Thus, Krum and the line of cases cited by the People are distinguished from the situation presented herein.
At this point, the People now concede that they made a mistake when they consented to the dismissal of the VTL Sec. 1192.3 charge, something the Court would not assume on the People's behalf in its earlier consideration of this matter. Yet, the People cite none of the factors enumerated in the Court's September 16, 2005 decision as the basis for an exercise of the Court's inherent power to correct mistakes. To reiterate, "this power is to be exercised only upon a proper showing that said mistake is the result of trickery, deceit, coercion or fraud and misrepresentation." People v. Mahmood, supra , citing People v. Farina, supra .
No where in their motion do the People assert that they were the victims of any "trickery, deceit, coercion or fraud and misrepresentation." If such were the case, then this Court would not hesitate to correct such an error. Here, however, the error is asserted to be a miscalculation of the time applicable to the VTL Sec. 1192.3 charge. This is not, trickery, deceit, coercion or fraud and misrepresentation, but is in fact, simply law office failure.
As noted in People v. Mascali, 189 Misc 2d 549, 550, 736 NYS2d 839 (Crim. Ct., NY Cty, 2001), where "mistakes are caused by prosecutorial laxity, ministerial error or sheer inadvertence, the weighty interests embodied by CPL Sec. 30.30 cannot tolerate such lapses, no matter how well-intentioned the prosecutor may be." See, also, People v. Rodriguez, 131 Misc 2d 864, 866, 502 NYS2d 366 (Crim. Ct., NY Cty, 1986) ("It is the People's responsibility to make the correct calculations as to when CPL Sec. 30.30 expires.") [*4]
Therefore, in light of the People's failure to either allege or establish that their consent to the dismissal of the VTL Sec. 1192.3 charge was the result of trickery, deceit, coercion or fraud and misrepresentation, the motion to reargue the dismissal of that charge is denied.
All other arguments advanced by the People 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 3, 2006
_______________________________ Hon. John H. Wilson, JCC
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