People v Ausby

[*1] People v Ausby 2013 NY Slip Op 51238(U) Decided on July 12, 2013 Criminal Court Of The City Of New York, Bronx County Poust-Lopez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2013
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Donnell Ausby, Defendant.



2011BX063659



Defendant is represented by

Lily Goetz

Criminal Defense Practice

Legal Aid Society

718-579-3090

The People are represented by

ADA Edward Siclari

Bronx District Attorney's office

718-838-7190

Linda Poust-Lopez, J.

Defendant Donnell Ausby was arrested on November 25, 2011 and charged with two counts of Driving While Intoxicated (V.T.L. §1192.2 and §1192.3) and one count of Driving While Impaired (V.T.L. §1192.1). He was arraigned on November 26, 2011.

Defendant moved, on May 22, 2012, for dismissal pursuant to C.P.L. §30.30, as well as on the grounds of facial insufficiency. He also moved for suppression of statements and of all evidence stemming from the arrest, and for other relief. The People responded, and defendant submitted a reply. By decision dated December 12, 2012, the judge sitting in this part at the time denied dismissal on the facial insufficiency motion and granted hearings on the suppression issues, but did not reach the C.P.L. §30.30 motion. This decision therefore addresses the 30.30 issue alone. [*2]

Procedural History

The Criminal Court complaint filed at defendant's arraignment charged defendant with Driving While Intoxicated under V.T.L. §1192.2, an element of which is a blood alcohol level of at least .08 of one percent. It also charged him with the so-called "common-law intoxication" statute, Driving While Intoxicated, under V.T.L. §1192.3, which does not require any particular blood alcohol level, but does require other indicia of intoxication. Finally, the complaint charged Driving While Impaired under V.T.L. §1192.1, which requires a showing that defendant's ability to drive was impaired by alcohol.

The common-law intoxication and the Driving While Impaired charges were established in the initial complaint by the first-party, sworn statement of the arresting officer, who stated that defendant had "a strong odor of an alcoholic beverage emanating from [his] breath, bloodshot watery eyes, and slurred speech" and said, "I had a drink like an hour ago." The Driving While Intoxicated charge was based on the allegation in the complaint that the breathalyzer test performed on defendant revealed his blood alcohol content to be .13 of one percent. The People did not file a chemical test analysis to corroborate the blood alcohol level, however. They told the court that they had a chemical test analysis that showed a reading of .07.[FN1][FN2] That charge therefore remained unsupported by non-hearsay allegations. The People nonetheless said that they were "ready." The court expressed its confusion at how the People could be ready if they were claiming the .13 blood alcohol level was converted by a .07 chemical test analysis. Defense counsel opined that the complaint was not converted and objected to the statement of readiness. The court did not rule on the issue, and the case was adjourned to January 11, 2012.

On the next court date, the People indicated that they intended to file a superseding information, and the case was then adjourned for that purpose. The following date was February 28, 2012. The People confirmed on that date that they still intended to file a superseding information but did not yet have one to file. They also said that since arraignments they had "maintained their readiness" on the common-law intoxication and the Impaired counts. The case was adjourned to April 2, 2012. The People did file a superseding information off calendar on February 29, 2012, charging the defendant with only the common-law intoxication under V.T.L. §1192.3, and with Driving While Impaired under V.T.L. §1192.1.

Positions of the Parties

Defendant argues that People did not have a jurisdictionally sufficient information until at least [*3]February 29, 2012 when they filed the superseding information. He says that, as more than 90 days had elapsed between the initial arraignment and the filing of the superseding information, the People's allotted time under C.P.L. §30.30 had expired and the case should be dismissed. He argues against the ideas of "partial conversion" and "partial readiness." The People counter that they had been "ready" on the common-law Intoxication and the Driving While Impaired charges at arraignment, and that they were therefore within their 30.30 time period for those charges. They also assert that, in any event, the traffic infraction of Driving While Impaired is not subject to any 30.30 analysis and should survive regardless of the result for the other charge. Finally, the People argue at length that defendant's constitutional right to a speedy trial has not been denied, even though defendant has not raised a constitutional speedy trial argument.

Legal Analysis

C.P.L. §30.30(1)(b) provides that a motion to dismiss pursuant to C.P.L. §170.30(e) must be granted when the People are not ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony."

In this case, two of the offenses which were initially charged- V.T.L. §1192.2 and 1192.3- are misdemeanors punishable by up to a year in jail. V.T.L. §1193(1)(b). And as there were no felony charges here, the People were entitled to 90 days, from the commencement of the criminal action, to be ready for trial.

To be ready for trial, the People must have an accusatory instrument upon which a defendant may be tried. In this case, that would be a jurisdictionally sufficient information.

The Criminal Procedure Law provides that a criminal action may be commenced by the filing of certain enumerated accusatory instruments. C.P.L. §100.05. The two types of accusatory instruments relevant for these purposes are a misdemeanor complaint , and an information. Each must conform to the form requirements of C.P.L. §100.15. A misdemeanor complaint is a "verified written accusation charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony." C.P.L. §100.10(4). It may serve as the basis for the commencement of an action, but may not serve as a basis for prosecution unless a defendant has waived prosecution by information. Id. An information is also a "verified written accusation charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony." C.P.L. §100.10(1), but has other elements, beyond those required for a misdemeanor complaint, (see below). An information may serve as both the basis for a criminal action and the prosecution thereof. Id.

For an information to be jurisdictionally valid, it must contain allegations which provide reasonable cause to believe that the defendant committed the offense charged, and non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. C.P.L. §100.40[1][c]; C.P.L. §100.15[3]; People v. Jones, 9 NY3d 259 (2007); People v. Alejandro, 70 NY2d 133(1987); People v. Dumas, 68 NY2d 729 (1986). [*4]

The People therefore cannot be ready for trial in a case where the highest charge is a misdemeanor unless they have a jurisdictionally sufficient information. C.P.L. §100.10[1]; C.P.L. §100.15[3]; §100.40[1][c]; People v. Colon, 59 NY2d 921 (1983), rev'g for reasons stated at 110 Misc 2d 917, 919-920 (Crim. Ct. NY County 1981); People v. Caussade, 162 AD2d 4, 8 (2nd Dept. 1990).

In this case, the People did not have a valid, jurisdictionally sufficient information- that is, one in which every element was established by non-hearsay allegations-until the superseding information was filed on February 29, 2012. Until that point, the accusatory instrument was merely a misdemeanor complaint, as it contained an allegation, necessary to support one of the charges, that defendant's blood alcohol content was .13 of one percent, yet there was no chemical test analysis to support that allegation.

The People argue that the complaint was converted to an information at arraignment (People's response, page 3, line 2; page 4 line 19). They state that the failure to file a chemical test analysis that matched the blood alcohol level in the complaint was a "clerical error" (People's response page 3 lines 5, 11; page 4 line 7). They argue that their statement of readiness made at arraignment was therefore valid.

The People also argue that, in any event they were "ready" on the impaired and common law intoxication charges from the beginning, as those did not require the chemical test analysis to make out the charges.

The problem with this argument is that there was no valid information in existence until the superseding was filed. The People do not provide any authority for the idea that the People can be "ready" on some counts without having a fully converted information. There is one case from the Appellate Term, First Department that defendant addressed in his motion, and that case bears looking at closely.[FN3]



People v. Brooks

In People v. Brooks, 190 Misc 2d 247 (Appellate Term, 1st Dept. 2001), the complaint charged several crimes, including a count of Criminal Impersonation where the defendant was accused of impersonating a police officer. At arraignment the court deemed the complaint an information and the People stated "Ready." The defense made no objection to either, and consented to an [*5]adjournment. On the next date the defense raised the argument, for the first time, that the allegation in connection with the Criminal Impersonation charge that the defendant "was not employed by the New York City Police Department" was not supported by any statement of anyone with firsthand knowledge of such a fact. The court agreed and adjourned the matter for the People to file a superseding information. The People eventually dismissed the Criminal Impersonation charge, 102 days after the arraignment.

The defendant moved to dismiss under C.P.L. §30.30, alleging that the People did not have a valid information until more than 90 days after arraignment, when the Criminal Impersonation charge was dismissed. The court granted the motion. The Appellate Term reversed, for several reasons.

One reason for reversal was that the defense had consented to the 31-day adjournment from arraignment to the next court date.[FN4] Where a defendant consents to an adjournment, that time period is excluded from the People's time limit under C.P.L. §30.30, even where the People do not yet have a jurisdictionally valid accusatory instrument. People v. Worley, 66 NY2d 523 (1985). It was for this reason that the dismissal in Brooks was reversed.

The Brooks court also mentioned other factors in support of its decision to reverse, however. One of these was that "defendant's hearsay challenge to the criminal impersonation count of the information should have been raised by way of a formal motion to dismiss that count . . . a procedure which, of course, would have triggered the motion practice exclusion of C.P.L. §30.30 (4)(a)." Brooks at 249, citations omitted.

This reasoning, as a rationale for reversing the 30.30 dismissal, was flawed in that case. Firstly, the Appellate Term characterized defendant's argument in that case as a "hearsay challenge," and maybe that was how defendant termed it in his motion papers, but it was not a hearsay challenge at all. There was no allegation that the complaint contained uncorroborated hearsay. Instead, the issue was more of a Dumas issue, where the complaint contained a conclusory statement to support an essential element of one of the charges. See, People v. Dumas, 68 NY2d 729 (1986). Secondly, while it is true that a motion to dismiss for facial insufficiency must be in writing,[FN5] there is no requirement that defendant make such a motion at any particular time, or even that he make the motion at all. In Brooks, the defendant, while not immediately, did shortly after arraignment orally point out that an element of the Criminal Impersonation charge was based on [*6]conclusory language and not established by the firsthand knowledge of the deponent. Thus, although he was in no way required to coach the People on what they needed to do to obtain a jurisdictionally sufficient information, he did signal early on that he was not conceding that the charge was made out. He then made that argument in writing in support of his 30.30 motion, so his challenges to the sufficiency of that count were in writing before the motion court. The Appellate Term's reasoning- that People's obligation to obtain a sufficient information within the 30.30 window is not enforceable unless defendant makes a written motion to enforce it, which written motion will alleviate the People from having to obtain a sufficient information during the period that the motion is pending- is Catch 22, circular reasoning. Following that logic, the defendant does not have the right to have a jurisdictionally sufficient information filed within the 30.30 period unless he demands that in writing, but that written demand will extend the deadline the People have to file a sufficient information. To follow this reasoning would eviscerate both the right to be prosecuted by an information and the right to have the prosecution be ready for within the 30.30 period, and any defense counsel who filed a such motion on an insufficient accusatory instrument, before the expiration of the 30.30 period, would skirting the border of ineffective assistance of counsel.

The final justification for the reversal in Brooks, and the most often cited by the People in cases such as the one before us (although, again, not cited by the People in this case), is the idea of "partial conversion" or "partial readiness." The Brooks Court held that "Any perceived pleading defect relating to the subsequently dismissed criminal impersonation charge did not serve to vitiate the People's otherwise valid readiness statement relating to the properly pleaded weapon possession and satellite charges that undisputedly rested entirely on nonhearsay allegations" Brooks at 249 (citations omitted). This statement, standing alone, seems to support the idea that it is possible for the People to be validly ready on some counts, even where another count is not supported by nonhearsay allegations. However, in the very next sentence, the Court goes on to explain what it means, and to again cite the defendant's failure to raise the issue immediately, and his consent to the adjournment, as reasons exclude that time period from the People's 30.30 calculation: "Put differently, the jurisdictional challenge to the criminal impersonation count subsequently advanced by defendant and summarily adopted by the motion court did not alter the adjournment already granted, or the responsibility for the delay necessitated thereby." Id. at 250.

What the Court is saying, then, is that as the defendant had the allegations in front of him, and did not object that the deponent's conclusion for that allegation was not sufficiently detailed, and did not object to the court deeming the instrument an information, or to the People's statement of readiness, he can not later claim that the other counts were not valid.

In this case, however, defendant objected, - at arraignment- both to any assertions of conversion or of readiness. He continued that objection, repeatedly, at every calendar call. His attorney made a point of saying that she was not filing motions because the matter had not been converted. The judge at arraignments also did not agree that the People had a converted information- and refused to suspend defendant's license without a corroborating chemical test analysis. Finally, the People themselves recognized that they did not have a valid accusatory instrument, as they asked to suspend the proceedings so that they could file a superseding information correcting their error. This case is thus vastly different than Brooks, where both [*7]parties and the court proceeded for some time accepting the validity of the accusatory instrument. Here, defendant objected vehemently from the beginning to prosecution on an unconverted complaint, and both the court and the People recognized the deficiency, and the case was put over for the People to supply a valid information, and for no other purpose.

There is also another important difference between this case and Brooks. Here, the defect in the complaint was of a different character than that in Brooks. In Brooks the defect was that one of the elements of a charged offense was supported by a conclusory statement. In other words, in Brooks the deponent police officer apparently had first-hand knowledge that the defendant was not a police officer, but did not articulate the basis for his knowledge in the complaint, just as the officer in Dumas did not articulate the basis for his conclusion that the substance recovered there was marijuana. The defect in the instant case, on the other hand, was that an element of the charge- the blood alcohol level- was not within the firsthand knowledge of the deponent officer, but was only supported by hearsay- the un-filed (and apparently nonexistent) chemical test analysis. It was not a matter, in this case, of the deponent elaborating more on what he knew - as the officer in People v. Kalin did, in describing how he knew the substance in that case to be marijuana, in contrast to the officer in Dumas, who did not indicate how he knew it to be marijuana. (compare People v. Kalin, 12 NY3d 225 [2009] with Dumas, 68 NY2d 729). Instead, it was a matter of whether the allegation (of a blood alcohol level of .13), which was not within the first hand knowledge of the deponent officer, had any reliable basis at all.

And, as it turns out, the allegation did not have any reliable basis at all. There never was a chemical test analysis, or any basis to think that defendant had a blood alcohol level of .13. The charge was in the complaint apparently only because of a careless error which occurred in the complaint room.

This case is therefore distinguishable from Brooks, both by the differences in the type of defect in the accusatory instrument, and by the presence in this case of immediate and continued objection to prosecution by an unconverted instrument. To the extent that Brooks subscribes to a theory of "partial conversion," and as that case is both distinguishable from this and contradicts both the plain wording of the statutes involved and Court of Appeals precedent, this court is not bound to follow it.[FN6]



The Information and Partial Conversion

We return, then, to the question of the information. We have already established that the People cannot be ready for trial in a case where the highest charge is a misdemeanor unless they have a jurisdictionally sufficient information. C.P.L. §100.10[1]; C.P.L. §100.15[3]; 100.40[1][c]; People v. Colon, 59 NY2d 921 (1983), rev'g for reasons stated at 110 Misc 2d 917, 919-920 (Crim. Ct. NY County 1981); People v. Caussade, 162 AD2d 4, 8 (2nd Dept. 1990).

What then, is an information? And even though the facts in Brooks are distinguishable from [*8]those here, and hence that case is not binding precedent, is there any other legal or practical basis for the idea that each count of an accusatory instrument can be viewed independently for C.P.L. §30.30 purposes?

Brooks relied upon People v. Dion, 93 NY2d 893 (1999) in its discussion of partial conversion. In Dion the initial felony complaint contained both a felony and a misdemeanor. Approximately 45 days after the commencement of the action, the People moved to dismiss the felony charge and stated "ready" on the misdemeanor charge, which was established by a supporting deposition. Dion, 93 NY2d at 894; Dion, defendant appellant's brief at p. 4. The court and the defendant consented to the reduction, but the court, apparently inadvertently and unbeknownst to the parties, did not properly complete the reduction as required by C.P.L. §180.50. The case continued, and the proper 180.50 reduction was finally accomplished 7 months after the commencement of the action.

Mr. Dion argued that, as the case proceeded for more than 6 months- the 30.30 time limit for a felony- without the People validly stating ready on the felony (which they would not have been able to do without an indictment) the case should be dismissed pursuant to C.P.L. §30.30. The court denied the motion, and the Court of Appeals upheld the denial, "in view of defendant's numerous pretrial motions and five changes of attorney." Dion at 894. In Dion, then, as in Brooks, the fact that the defendant consented to or caused some of the adjournments, bringing the People's chargeable time to within their 30.30 limit, was the reason the defendant did not prevail. Dion does not stand for any kind of "partial conversion," but only re-asserts the principle that when a defendant consents to an adjournment, that time is not chargeable to the People, even where there is not a valid accusatory instrument.

It should also be remembered that C.P.L. §30.30 is a "prosecutorial readiness" statute, and not a "speedy trial" statute. The fact that, in Dion, the court failed to make the proper notations in its file to effect the reduction was in no way in the control of the People. The People moved for a reduction, and the court stated that their request was granted. The People should not be expected to check up on the court and peek into the court file to make sure that the reduction had been done correctly. So while it would not have been possible to actually bring the misdemeanor to trial while the felony complaint was pending, the People had done everything they could do to bring the case to trial, and were ready, and could not be charged with the court's mistake which was unknown to them.

In this case, however, the People did not do everything in their power to bring the case to trial. After a careless error resulted in the inclusion of a charge that had absolutely no basis in fact, they did not bother to do the minimal actions that would have been required to cure the error. The People waited over 90 days before filing a superseding information. And it cannot be argued that they had difficulty in scheduling the deponent officer to sign the new instrument, because they did not even need to file a superseding to cure the error. All they needed to do was move to strike the baseless Driving While Intoxicated charge. This would have taken 30 seconds, would not have required any additional paperwork, or even for the A.D.A. to lift a finger. Once that was done, the People would have had a valid information, and the case could have proceeded to trial. Instead, the People inexcusably neglected the matter, and left defendant in a legal limbo where he had a criminal case pending against him, yet could not start a trial, or [*9]even be sure what his charges were going to be. This is exactly the type of delay that C.P.L. §30.30 was intended to prevent- the delay occasioned by prosecutorial inaction. People v. Harris, 82 NY2d 918 (1993); People v. McKenna, 76 NY2d 59 (1990); People v. Bratton, 103 AD2d 368 (2nd Dept. 1984).

Nor can "partial conversion" be justified by the cases which state that, "each count of an accusatory instrument "is deemed to be a separate and distinct accusatory instrument." Brooks at 250. Those cases are motivated by different policy concerns or legal doctrines than are present here. For example, in People ex rel. Ortiz v. Commissioner of NY City Dept. of Correction, 253 AD2d 688 (1st Dept. 1998), aff'd 93 NY 959 (1999) the question centered on C.P.L. §170.70, which requires the release from custody of any defendant held for more than 5 days without an information being filed. The cases presented together in Ortiz each had at least one count converted with nonhearsay allegations before the expiration of the 5 days, but did not have all counts converted. The Appellate Division, and then the Court of Appeals, held that this was sufficient to meet the 170.70 standard.

The policy concerns in a 170.70 context are much different than those in a 30.30 context. C.P.L. §170.70 exists to ensure that no one is held in jail for more than 5 days on uncorroborated allegations.

Another line of cases relied upon by Brooks for the idea that each count of an accusatory instrument is a separate accusatory instrument is that line of cases dealing with inconsistent verdicts. These cases generally hold that the test for whether verdicts are inconsistent is whether "separate indictments had been presented against the defendant for [the two different charges], and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other." Dunn v. U.S., 284 US 390 (1932); see also People v. Delorio, 33 AD2d 350 (3rd Dept. 1970). And so while these cases were cited in Brooks as supporting the idea that each count is a separate accusatory instrument, a closer look shows that interpretation is taken out of context and does not apply here.

So, while there are lines of caselaw that look at separate counts of an accusatory instrument independently for different reasons, none of these defines a misdemeanor information.

The definition of a misdemeanor information can be found in the Criminal Procedure Law. We have looked at part of that definition supra, but now turn to it more in depth.

C.P.L. §100.15 provides, in relevant part, that:

1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

2. The accusatory part of each such instrument must designate the offense or offenses charged. [*10]As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement prescribed in subdivision one of section 100.40 that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

Read as a whole, C.P.L. §100.15 defines an "information" as one instrument containing one or more counts. The instrument must have a caption, with the title of the action (not actions), and the name of the court. C.P.L. §100.15(1). The information may contain one or more counts-but even with several counts it is still one instrument. C.P.L. §100.15(2). The instrument must contain a factual narrative applicable to all counts. C.P.L. §100.15(3). The statute does not in any way describe the individual counts of the instrument as informations themselves. In fact, it distinguishes between the two in the section dealing with sufficiency: "in order for an information or a count thereof to be sufficient on its face . . ." C.P.L. §100.15(3).

In spite of this clear and workable definition of an information, some courts have interpreted C.P.L. §170.30(e) as authorizing separate 30.30 treatment for each count of an information. See, e.g. People v. Minor, 144 Misc 2d 846 (App. Term, 2nd Dept. 1989); People v. Vela, 36 Misc 3d 1212A (Crim. Ct. Bronx Cty 2012). This is not a clear reading of the statute, however.

Section 170.30 of the Criminal Procedure Law states:

1. After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:

(a) It is defective, within the meaning of section 170.35; or

(b) The defendant has received immunity from prosecution for the offense charged, pursuant to sections 50.20 or 190.40; or

(c) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or

(d) The prosecution is untimely, pursuant to section 30.10; or

(e) The defendant has been denied the right to a speedy trial; or

(f) There exists some other jurisdictional or legal impediment to conviction of the defendant for [*11]the offense charged; or

(g) Dismissal is required in furtherance of justice, within the meaning of section 170.40.

Because the section allows a court to dismiss an information "or a count thereof" for any of the enumerated reasons, including speedy trial under subsection (e), these courts reason that it is possible to apply C.P.L. §30.30 to some counts, but not all, of an information.

However, 170.30 lists several grounds on which a court may dismiss, only one of which is a speedy trial violation. The other grounds are all those which could apply to either the complete information "or a count thereof." Because 170.30 several reasons a court may dismiss- some of which may apply to a single count, and at least one of which can only apply to the full information- it has the language "such instrument or any count thereof," depending on which grounds apply in a particular case.

Subsection (g), for example, deals with a dismissal pursuant to C.P.L. §170.40- a dismissal in the interests of justice. This can easily apply to a single count, or to the whole information. How do we know this? Not just because it makes sense, but because the statute says so: "An information . . . or any count thereof, may be dismissed in the interest of justice, as provided in paragraph (g) of paragraph one of section 170.30. . ." C.P.L. §170.40 (emphasis supplied).

Similarly, C.P.L. §170.35(1) states that "[a]n information . . ., or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when . . ." (emphasis supplied).

In contrast, C.P.L. §30.30(1)(b) says: ". . . a motion made pursuant to paragraph (e) of subdivision one of section 170.30 . . . must be granted where the people are not ready for trial within . . . ninety days of the commencement of a criminal action, wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."

So while sections 170.35 and 170.40 provide for the dismissal of the entire information or one or more of the counts therein, section 30.30 provides only for the dismissal of the entire information. And just in case that is not clear enough, 30.30 describes the "criminal action" that can be dismissed as containing "one or more offenses" therein. So, the counts are contained in the action; they are not actions themselves. And under 30.30, if the people have not met their time limit, the entire action can be dismissed.

Pure statutory construction, then, supports the conclusion that a dismissal under C.P.L. §30.30 applies to the entire "action;" that the People cannot be ready for trial until they have an "information;" and that an "information" is one instrument containing one or more counts. The Court of Appeals has supported this interpretation of C.P.L. §30.30 in People v. Lomax, 50 NY2d 351 (1980), where it held that, under 30.30, "there can be only one criminal action for each set of criminal charges brought against a particular defendant." Id. at 356.

The People here seem to contend that they could be "ready" on two counts of the instrument but [*12]"not ready" on a third. But, first of all, as the Court of Appeals said, there is only one criminal action, so either they are ready on the whole action, or they are not. But also, the People's reasoning does not make any sense: how would the People begin a trial on the common law intoxication and Driving While Impaired charges, yet continue to adjourn the Driving while Intoxicated charge for conversion? Justice Suarez in his concurring opinion in Brooks pointed out this impossibility, and his practical analysis was dismissed by the majority. Brooks at 254, 250. Yet not only does "partial readiness" contradict established caselaw and the clear reading of the statutes, it is actually impossible.

Let us look at how "partial readiness" would be applied in this case. The People said at arraignment that they were ready for trial on the common law and Impaired charges, but "not ready" on the DWI charge. So assuming there was an available jury trial part that day, and giving a reasonable amount of time for the prosecution witnesses to get a phone call from the assigned A.D.A and work out a day and time they could get to court, the trial could begin on the impaired and common-law charges in short order. At this point we have to suspend logical legal analysis, because the "information" is not an information at all, but still contains a count which claims that the defendant had a blood alcohol level of .13, and that is not confirmed by any chemical test. But, following the idea that each count is an information unto itself, the trial could begin on the other two charges. Now, let's say that trial is completed within less than 90 days of arraignment. What happens to the DWI charge? It is still pending, as it's own accusatory instrument, according to the People. But does it have its own docket number? And after a verdict on the other two charges, are not the People precluded from prosecuting that charge under double jeopardy principles?

Of course this does not make any sense. The People would be the first to object to this scenario, as they would lose the chance, under constitutional and statutory double jeopardy principles, to prosecute defendant on the DWI charge. C.P.L. §40.40(1);Troy v. Jones, 61 AD2d 802 (2nd Dept. 1978).

In the end, "ready for trial" means "ready for trial." It is not just words. To meet their deadline under C.P.L. §30.30, the People must have a sufficient information where all counts are supported by non-hearsay allegations, and then they must do more than just mouth the word "ready." They must be actually, presently ready for trial. People v. Kendzia, 64 NY2d 331 (1985). The People here did not have a sufficient information until more than 90 days had elapsed, and were therefore not "ready" for trial within their 30.30 time limit.



Driving While Impaired Under V.T.L. §1192.1

The People claim that, even if the misdemeanor charges should be dismissed pursuant to C.P.L. §30.30, that V.T.L. §1192.1 "is not subject to Criminal Procedure Law Speedy Trial Limits" (People's response at 5). And while it is true that any action which is commenced with traffic infractions alone can find no place in the C.P.L. §30.30 strictures, it is not a fair reading of the statute to say that a traffic infraction can survive dismissal when the crimes charged with it can not. [*13]

The People cite a number of cases in their papers in support of their argument, but in fact there is only one appellate case in the First Department that supports their position- People v. Gonzalez, 168 Misc 2d 136 (App. Term 1st Dept. 1996). Decided almost 20 years ago, Gonzalez bears re-visiting, as it overlooked the definition section of the Penal Law, and hence misinterpreted the plain meaning of C.P.L. §30.30.

Gonzalez dealt with a similar situation where the case originally contained a misdemeanor as well as the traffic infraction of Driving While Impaired under V.T.L. §1192.1. The misdemeanor was dismissed, and the Criminal Court held that the traffic infraction should be dismissed under C.P.L. §30.30. The Appellate Term reversed, holding that the statute excluded traffic infractions from its applicability by the its use of the term "offense". The court held: "The use of the generic term offenses' is critical, inasmuch as the Legislature, in recognition of the fact that a traffic infraction is not a violation,' created the term petty offense' for the purpose of referring to noncriminal offenses when traffic infractions are intended for inclusion." Id at 136.

However, the Penal Law, whose definitions are applicable to the Criminal Procedure Law, C.P.L. §1.20, contains the following definitions in P.L. §10.00:

1. "Offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.

2. "Traffic infraction" means any offense defined as "traffic infraction" by section one hundred fifty-five of the vehicle and traffic law.

3. "Violation" means an offense, other than a "traffic infraction, " for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.

4. "Misdemeanor" means an offense, other than a "traffic infraction, " for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

(emphasis supplied).

By the plain reading of the Penal Law, then, which is applicable to C.P.L. §30.30 by virtue of C.P.L. §1.20, a traffic infraction is an offense. Simply because the C.P.L. defines the term "petty offense," which is used in other provisions of the chapter, does not alter the fact that the Penal Law says that a traffic infraction is an offense.

Returning to C.P.L. §30.30 (1)(b), then:

a motion [to dismiss pursuant to C.P.L. §170.30(e)] must be granted when the People are not ready for trial within . . . ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony.

(emphasis supplied). [*14]

The statute says that when the "action" contains one or more "offenses," of which the highest is an A misdemeanor or its equivalent, and the People are not ready for trial within 90 days, the "action" must be dismissed. Gonzalez overlooked the Penal Law definition of "offense" when it determined that only certain counts of the action should be dismissed, and not the action itself.

"It is well settled that in construing a statute, a court should attempt to effectuate the intent of the legislature . . .the words employed by the legislature must be given their natural, ordinary and obvious meaning." People v. Graham, 39 Misc 3d 35 (App. Term, 2nd Dept., 2013)(citations omitted)[FN7]. There is nothing that says the whole action "except for traffic infractions" must be dismissed. The traffic infractions, violations, or lesser misdemeanors all go- the whole action is dismissed. Any other interpretation is contrived, impractical, and contrary to both the plain meaning of the statute and its purpose.

The Legislature expressly crafted C.P.L. §30.30 so that the time period would be judged by the highest offense in the action. When the time period for that offense has expired, the whole action is to be dismissed. This is clearly how the statute is written, and it makes sense.

In its statutory scheme, the Legislature provided that the People would have longer time periods to prepare for the more serious offenses. Hence, they have only 30 days to prepare for an action where the highest charge is a violation, 60 days where it is a B misdemeanor, 90 days where it is an A misdemeanor, and 6 months where it is a felony. However, where the felony is a homicide, the People have no limits on their preparation time. This is because more serious cases take more time to prepare. And a homicide is so serious, both for the victim and for the defendant- should he be convicted- that the People need to be especially diligent and meticulous in their preparation.

How perverse would it be if, in a case which arises out of one single act- driving while being in some way affected by alcohol- the People should be limited in their preparation to 90 days, but can let the less serious charge linger as long as a murder case? Indeed, allowing the 1192.1 charge to stand after the more serious charges had been dismissed under C.P.L. §30.30 would allow the People to avoid the consequences of their dilatory behavior as long as they included a charge of Driving While Impaired in their complaint. See People v. Faison, 171 Misc 2d 68 (Crim. Ct. Bronx Cty 1996).

But the perverseness of the result is neither here nor there. What is paramount is the plain meaning of the statute, which is in keeping with the intent of the Legislature.



Conclusion

An information can contain more than one count, but for that information to be facially sufficient, all elements of each of the counts must be supported by non-hearsay allegations. A document that fails to do that is not an information. The People cannot be ready for trial until [*15]they have a valid, facially sufficient information. In evaluating a motion to dismiss under C.P.L. §30.30, the proper time period allotted to the People is that corresponding to the highest charge. Where the highest charge is an A misdemeanor, then, the People are allotted 90 days within which to be ready for trial, even if other charges in the action are lesser offenses- the People get the full 90 days for the action as a whole. If the People are not ready within 90 days, the entire action is dismissed, including all offenses charged therein. A traffic infraction is an offense, and would not survive if charged in an action where the highest charge was a misdemeanor.

Based upon the foregoing, this criminal action- docket 2011BX063659- is dismissed in its entirety.

This constitutes the decision and order of the court.

Dated: July 12, 2013_________________________________

Bronx, New YorkJudge Linda Poust Lopez Footnotes

Footnote 1: They also had the officer's IDTU report, an unsworn statement, which stated a blood alcohol level of .13.

Footnote 2:There are also two analagous cases from the Appellate Term, Second Department- People v. Minor, 144 Misc 2d 846 (App. Term 2nd Dept. 1989) and People v Gray, 7 Misc 3d 127(A)(App. Term 2nd and 11th Jud. Dists. 2004). As these cases are from a different Department, however, they are not binding on this court. See, e.g., People v. Pestana, 195 Misc 2d 833 (Crim. Ct. NY Cty 2003).

Footnote 3:The Appellate Term characterized as "consent" defendant's participation in choosing an adjourn date convenient to the court and both parties. While this may not rise to the level of what is necessary to show "consent" to an adjournment for 30.30 purposes (see People v. Smith, 82 NY2d 676 [1993] and People v. Liotta, 79 NY2d 841[1992]), the Appellate Term found consent as a fact in Brooks, and any issue of consent is not in dispute here. We will therefore assume, for the purposes of this decision, that the defendant in Brooks consented to the first adjournment.

Footnote 4:Except that a dismissal for insufficiency of an information under C.P.L. 140.45 does not have to be upon a written motion. People v. Machado, 182 Misc 2d 194 (Crim. Ct, Bronx Cty 1999). Defendant's objection here was arguably under C.P.L. 140.45, as no chemical test analysis for .13 exists, and the People had no basis for that charge.

Footnote 5:Nor is this court bound to follow People v. Castro, Appellate Term, 1st Dept decision, decided two months after Brooks in 2001, as it is based on much of the same reasoning, and is unpublished.

Footnote 6:The Graham case had a similar factual pattern, but different legal issue. In Graham, the dismissal below was in the interests of justice, not pursuant to C.P.L. 30.30. In dicta, however, the court followed other Appellate Term, 2nd Department cases which ruled that the criminal action must be parsed out to allow the traffic infractions to survive an otherwise-valid 30.30 motion. As stated earlier, the Appellate Term, 2nd Department cases are not binding on this court.

Footnote 7: