People v Avila
Annotate this CaseDecided on December 7, 2012
Criminal Court of the City of New York, Bronx County
The People of the State of New York
against
Arnold Avila, Defendant.
2012BX000916
Defendant was represented by the Legal Aid Society of NYC (Bronx County), by Evan Sugar, Esq., Of Counsel.
The People were represented by Robert T. Johnson, District Attorney, Bronx County by ADA Peter D'Angelo.
Alvin M. Yearwood, J.
It is hereby ordered that defendant's motion to dismiss the accusatory instrument for lack a facial sufficiency pursuant to CPL § 170.35(2) and pursuant to CPL § 30.30(1)(b) is denied for the reasons that follow.
The defendant is charged with violating PL § 165.05(3), unauthorized use of a motor vehicle in the third degree. The defendant has filed a motion seeking an order dismissing the accusatory instrument pursuant to CPL §§ 170.30(2) and 170.65 for lack of facial sufficiency and for violating the defendant's rights pursuant to CPL § 30.30(1)(b). The People argue the complaint is facially sufficient; that defendant's motion is time barred and that they have not violated the defendant's rights pursuant to CPL § 30.30(1)(b).
FACIAL SUFFICIENCY
For jurisdictional purposes a criminal court information is sufficient on its face when it contains non-hearsay factual allegations that establish, if true, every element of the crimes charged and the defendant's commission thereof. Criminal Procedure Law (CPL) §§ 100.15(3), 100.40(4)(b); People v Henderson, 92 NY2d 677, 679 (1999); People v Alejandro, 70 NY2d 133 (1987); People v Dumas, 68 NY2d 729 (1986). When considering a facial sufficiency claim, this Court must read the allegations in the light most favorable to the People. CPL § 170.45; People v Jennings, 69 NY2d 103, 114 (1986). In general, as long as the factual allegations of an information conform to the pleading requirements of Article 100 of the CPL, and the allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006]; People v Casey, 95 NY2d 354, 360 [2000]). Facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution and can be raised at any time (Casey, 95 NY2d 354, 363; People v Alejandro, 70 NY2d 133 [*2][1987]).
Defendant moves to dismiss the information in this matter and argues the complaint is insufficient in that the People filed a superseding information that allegedly did not conform to the requirements of CPL § 170.65 which governs the replacement of a criminal court complaint with a criminal court information. In support of this position defendant argues that the People have failed to provide a "copy of the alleged contract referenced" and that no "copy of the alleged notice referenced in the accusatory instrument have been filed with the Court", and that such omission on the part of the People results in the accusatory instrument containing unconverted hearsay allegations in the complaint.
It should be noted from the outset that with respect to this branch of defendant's motion to dismiss, defendant has not cited to any case law whatsoever in support of the position that such rental agreements and written notice allegedly sent by certified mail are required to properly convert a misdemeanor complaint that charges a defendant with violating PL § 165.05(3), unauthorized use of a motor vehicle in the third degree, into a criminal court information.
PL § 165.05(3) provides:
A person is guilty of unauthorized use of a vehicle in the third degree when:
"Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement."
"For purposes of this section a gross deviation from the agreement' shall consist of, but not be limited to, circumstances wherein a person who having had custody of a vehicle for a period of fifteen days or less pursuant to a written agreement retains possession of such vehicle for at least seven days beyond the period specified in the agreement and continues such possession for a period of more than two days after service or refusal of attempted service of a notice in person or by certified mail at an address indicated in the agreement stating (i) the date and time at which the vehicle was to have been returned under the agreement; (ii) that the owner does not consent to the continued withholding or retaining of such vehicle and demands its return; and that continued withholding or retaining of the vehicle may constitute a class A misdemeanor punishable by a fine of up to one thousand dollars or by a sentence to a term of imprisonment for a period of up to one year or by both such fine and imprisonment." (PL § 165.05[3]) (Emphasis added).
The factual allegations in the complaint read, in relevant portion:
"Deponent further states that he is informed by DENNIS CASEY, a Security Manager of Hertz Corporation, that defendant entered into a contract with Hertz Corporation on October 5, 2011 at approximately 3:00PM, to rent a Honda Civic, [*3]Tennessee License Plate #A87 81N. Deponent is further informed by informant that the contract stipulated that the aforementioned vehicle was required to be returned to the custody and control of Hertz corporation no later than November 2, 2011 at 4:40 P.M."
"Deponent is further informed by informant that the aforementioned vehicle was not returned to the custody and control of Hertz corporation by the required above stated time and date of November 2, 2011 at 4:40 P.M."
"Deponent is further informed by informant that defendant was notified by Hertz Corporation on November 9, 2011, by certified mail, and that notification stated in sum and substance: PURSUANT TO THE CONDITIONS THE CAR WAS RENTED TO YOU UNDER, YOU ARE NOW WITHOUT LEGAL SANCTION TO KEEP THE VEHICLE. ACCORDINGLY, WE HEREBY DEMAND THAT YOU RETURN THIS VEHICLE IMMEDIATELY. ALL COSTS OF ANY KIND INCURRED BY HERTZ IN RECOVERING THE VEHICLE WILL BE BILLED TO YOU. FAILURE TO COMPLY WILL RESULT IN THE FILING OF THEFT CHARGES WITH THE AUTHORITIES TO PROTECT THE INTERESTS OF HERTZ CORPORATION." (Capitalization in original).
Defendant argues that the alleged hearsay defect renders the information facially insufficient. This court disagrees. It should be noted that defendant's argument is premised upon the second paragraph of PL § 165.05(3) which, for the purposes of PL § 165.05 only, purports to define what "a gross deviation from the agreement" shall consist of. This definition does not change the elements of the offense. Rather, it simply provides one definition of what the term "a gross deviation from the agreement" means. Indeed, paragraph two of PL § 165.05(3) specifies that the definition of "gross deviation from the agreement" is not limited to the language contained in paragraph two, thus, it is not an element of the offense. (Emphasis added). In order to properly charge this offense the People must allege: "(1) the terms of the agreement, in particular, the duration of the agreement; (2) that the retention by the defendant was so lengthy in proportion to the agreement as to constitute a gross deviation' from that agreement; and (3) a demand for return by the lessor and refusal by the lessee (People v Johnson, 169 Misc 2d 746, 749-750 [Crim Ct, Queens County 1996], citing People v Carrington, 139 Misc 2d 122 [Crim Ct, New York County 1988]).[FN1]
As the accusatory instrument sufficiently details the charges against the defendant, and is adequately detailed to prevent defendant for being tried twice for the same offense, defendant's motion to dismiss the sole count of the information for lack of facial sufficiency must be denied.
CPL § 30.30(1)(b)
Defendant also moves the court for an order dismissing the accusatory [*4]instrument alleging a violation of defendant's right to a speedy trial pursuant to CPL § 30.30(1)(b). Defendant argues that "as of today the hearsay allegations contained in the complaint have not been converted . . .[t]hus the People have never been able to make a valid declaration of readiness for trial." As a result, defendant alleges that the People should be charged with the entire 186-day period of delay from defendant's arraignment on January 6, 2012, to July 10, 2012. The People maintain that they are properly chargeable with 32-days of delay. After reviewing the submissions from the parties and the court record, the Court finds that the People are properly charged with 31-days of delay. Accordingly, defendant's motion to dismiss the criminal court information pursuant to CPL § 30.30(1)(b) is denied for the reasons that follow.
The sole count of the accusatory instrument, a class A misdemeanor, carries a 90-day speedy-trial readiness limit within which the People are required to declare and maintain readiness for trial as measured from commencement of the action and less any excludable periods (CPL § 30.30[1][b]; CPL § 30.30[4]). The People satisfy this obligation when they communicate their present and actual readiness for trial, either in open court where it is transcribed by the stenographer or recorded by the clerk, or by written notice to both defense counsel and the appropriate court clerk. People v Kendzia, 64 NY2d 331 (1985); People v Anderson, 66 NY2d 529 (1985). In order for a certificate of readiness to be effective, it must not only be filed with the court but must also be served promptly upon the defense (People v Kendzia, 64 NY2d 331 [1985]; People v Collins, 190 Misc 2d 72 [App Term, 2d Dept 2001]).
In the pre-readiness phase, unless there is an excludable basis for the adjournment, the People are responsible for the entire adjournment rather than the period requested. Once the People have effectively declared their readiness for trial, they are only responsible for further periods of delay requested by or solely attributable to them (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; lv denied 1 NY3d 599 [2004]).
Turning to the adjournments in question, the Court makes the following findings:
The defendant was arraigned on a criminal court complaint on January 6, 2012. The matter was adjourned to February 29, 2012 for conversion. Off-calendar on January 25, 2012 the People filed a superseding information and statement of readiness for trial. The People are charged with an 18-day period of delay between January 6, 2012 and February 29, 2012 (People v Kendzia, 64 NY2d 331 [1985]). When calculating time for CPL § 30.30 purposes, the first day after a defendant's arraignment is excludable (People v Stiles, 70 NY2d 765 [1987]).
On February 29, 2012 the court set a motion schedule and the matter was adjourned to April 25, 2012 for the People's response and the Court's decision. This adjournment is excludable (CPL § 30.30[4][a]). On April 25, 2012 the matter was adjourned to June 27, 2012 for trial. This adjournment is excludable (CPL § 30.30[4][a]; People v Green, 90 AD2d 705 [1st Dept 1982], lv denied, 58 NY2d 784 [1982]).
On June 27, 2012, the People were not ready for trial and requested July 2. The matter was adjourned to July 2 for trial. The People are charged with a 5-day period of from June 27 to July 2. On July 2 the People were not ready and requested July 10. The matter was adjourned to July 10 for trial. The People are charged with an 8-day [*5]period of delay from July 2 to July 10. (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; lv denied 1 NY3d 599 [2004]).
On July 10, 2012 the People were not ready. Defense counsel requested a motion schedule to file a motion to dismiss pursuant to CPL § 30.30. The matter was adjourned to August 3, 2012 for the People's response and the Court's decision. On August 3 the matter was adjourned to for the People's response and the Court's decision. On October 12 the matter was adjourned to December 7, 2012 for the Court's decision. These adjournments are excludable. (CPL § 30.30[4][a]).
The Court finds that the People are properly charged with an 18-day period of delay between January 6, 2012 and February 29, 2012; a 5-day period of delay from June 27, 2012 to July 2, 2012 and an 8-day period of delay from July 2, 2012 to July 10, 2012. As the People are properly charged with 31-days of delay they have not violated defendant's rights pursuant to CPL § 30.30(1)(b). Accordingly, this branch of defendant's motion to dismiss the criminal court information is likewise denied.
This constitutes the decision and order of the Court.
Dated:December 7, 2012
Bronx, NY
_____________________
HON. ALVIN YEARWOOD
Acting Justice of the Supreme Court
Footnotes
Footnote 1: People v Johnson, 169 Misc 2d 746 and People v Carrington, 139 Misc 2d 122 were both dismissed on other grounds.
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