People v Ishmell

[*1] People v Ishmell 2006 NY Slip Op 52137(U) [13 Misc 3d 1236(A)] Decided on November 14, 2006 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

David Ishmell, Defendant.



2006RI033896



For the People: Dean C. Sovolos

For the Defendant: Nicholas Vitek

Eileen N. Nadelson, J.

Motion to Dismiss Pursuant to CPL 30.30

The issue presented in this case is whether the People may be considered ready on the converted counts of a partially converted information or must they be charged under CPL 30.30 until all charges are converted or dismissed.

CPL 30.30 requires that a criminal complaint alleging a Class A misdemeanor be converted to an information and ready for trial within ninety days of arraignment or the case must be dismissed. Defendant was arraigned with a complaint on May 17, 2006, and the case was adjourned to be converted to an information to June 8, 2006. On June 8, 2006, the People were not ready to convert the complaint, and the case was adjourned again to July 20, 2006. On July 20, 2006, the People filed a firearms analysis report which converted one of the counts from a complaint to an information, and announced ready with respect to that count, PL 265.01. The case was adjourned for full conversion of all the unconverted counts appearing in the complaint

On August 21, 2006, more than ninety days after arraignment, the People dismissed all of the unconverted counts in the complaint, retaining for trial only the single converted count. Defendant moved to dismiss the entire case, asserting that the court cannot deem the People ready on a partially converted information. Defendant's argument is that a criminal complaint must have all of its counts either voluntarily dismissed by the People or converted to an information within the statutory period of the speedy trial provisions of CPL 30.30 or the entire case must be dismissed by the court. Since more than ninety days had elapsed between arraignment and dismissal of the unconverted counts, Defendant maintains that the case cannot proceed. Conversely, the People assert that each count appearing in a criminal complaint may be converted to an information independent of each other for the purposes of the speedy trial provisions of CPL 30.30.

The major thrust of Defendant's argument rests on his analysis of People v. Peluso, 192 Misc 2d 33, 745 N.Y.S.2d 845 (Crim. Ct. Kings County 2002). In that case the court held that [*2]the People cannot announce partially ready for trial on a partially converted accusatory instrument without first curing the jurisdictional defects of the accusatory instrument by converting, dismissing or severing the unconverted charge within the time frame established under CPL 30.30(1)(b). In reaching this conclusion the Peluso court rejected the 1989 Appellate Term decision in People v. Minor, 144 Misc 2d 846, 549 N.Y.S.2d 897 (2dt Dept. 1989). The Minor court found that the People can declare partially ready for trial. Peluso maintains that "the fact that different counts may be converted at different times and by different documents does not negate the requirement that the People must be ready on all counts of an instrument before they can actually be ready for trial.... The court has no jurisdiction to try a partially converted instrument."[emphasis added]

However, the Pelusso court failed to take into account the Appellate Term decision in People v. Castro, 2001 WL 1691976 (NY Sup. App. Term 2001), 2001 NY Slip Op. 50084(U) which was rendered six months previous. Castro stated:

Neither the People's stated intention to file a corroborating affidavit in

connection with a (subsequently dismissed) weapon possession charge

nor their assent to the adjournment proposed by the court for that purpose

signified a lack or readiness to proceed on the other properly converted

charges.... Speedy trial [analysis] must, as a matter of course, often

involve distinct considerations with respect to individual counts of a

single accusatory instrument' (People v. Gonzalez, 168 Misc 2d 136, 137,

lv denied 88 NY2d 936, quoting People v. Minor, 144 Misc 2d 846, 848,

lv denied 74 NY2d 666).

The Castro court found that the speedy trial considerations of CPL 30.30 are to be individually determined with respect to each count of a partially converted accusatory instrument.

Several months after the decision in People v. Peluso was rendered, the Criminal Court in Kings County, the same court that decided Peluso, held that the criminal court, like many other courts, "recognizes partial conversion and therefore respectfully diverges from the view espoused in People v. Peluso." People v. Shadrin, 2002 NY Slip. Op. 50468(U) (Crim. Ct. Kings County 2002). This decision cites People v. Brooks, 190 Misc 2d 247, 736 N.Y.S.2d 823 (App. Term 1st Dept. 2001), holding that "each count of an accusatory instrument is deemed as a matter of law to be a separate and distinct accusatory instrument." Consequently, the court saw no basis for departing from the decisions handing down by the appellate tribunals.

Neither party in the instant matter disputes that the one remaining count was fully converted and ready for trial before the time limits imposed by CPL 30.30 would warrant dismissal. The only contention is whether the time to convert or dismiss the remaining unconverted counts must be assessed against the converted one as well. The court notes that the unconverted counts were not dismissed by the People until after ninety days had elapsed from the time of Defendant's arraignment. [*3]

Based on the clear direction of the appellate courts, this court finds that the People were ready for trial on the converted count of the partially converted complaint within the time limits imposed by CPL 30.30. The fact that the People dismissed the unconverted count after the CPL 30.30 time period is ineffective to warrant dismissal of the count that was timely converted. Therefore Defendant's motion to dismiss that count is denied.

This constitutes the decision and order of the court.

Dated: November 14, 2006

EILEEN N. NADELSON, J.C.C.