People v Rivera

[*1] People v Rivera 2013 NY Slip Op 51580(U) Decided on October 1, 2013 Criminal Court, Bronx County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2013
Criminal Court, Bronx County

The People of the State of New York,

against

Harry Rivera, Defendant.



2013BX022225



For the People, Robert T. Johnson, District Attorney, Bronx County, by Emmanuel Ulubiyo, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Esq., Legal Aid Society, by Jeremy Robert Davidson, Esq.

John H. Wilson, J.

By a superceding information dated September 20, 2013, Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor; one count each of Operating a Motor Vehicle While Under the Influence of Drugs (VTL Sec. 1192(4)) and Aggravated Unlicensed Operation of a Motor Vehicle (VTL Sec. 511(1)(a)), both unclassified misdemeanors ; and one count of Unlicensed Driving (PL Sec. 509(1)), a traffic infraction.

By omnibus motion dated August 7, 2013, Defendant seeks the following: Dismissal of the docket pursuant to CPL Sec. 30.30; suppression of all physical evidence seized, statements made to and identification procedures conducted by law enforcement personnel; and suppression of any evidence of any prior bad acts or immoral conduct.

The Court has reviewed the Court file, Defendant's motion, and the People's Response [*2]dated August 19, 2013. For the reasons stated below, the motion to dismiss pursuant to CPL Sec. 30.30 is granted to the extent of dismissing the charge of Criminal Possession of a Controlled Substance in the Seventh Degree; as to all other charges, the People are charged with 45 days to date in this matter.

The motion for pre-trial hearings is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not physical evidence was seized and statements were taken in violation of Defendant's rights under the United States and New York Constitutions.

Since the People assert that no identification procedure was conducted, the motion to suppress this evidence is denied.

A hearing regarding whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.

STATEMENT OF THE FACTS

Pursuant to the superceding information, on or about April 16, 2013, at approximately 4:30 AM, in front of 781 East 181 Street, Bronx, New York, Police Officer Mateusz Sajduk observed "the defendant seated behind the steering wheel and operating a white, 2009 Toyota 4D...with the keys in the ignition, engine running, while said vehicle was parked at the above location." See, superceding information dated September 20, 2013, p 1.

The officer also observed "the defendant "to be unresponsive, laughing erratically, hysterically, eyes dialated, slurred speech, and to be swaying and unsteady on his feet." Defendant is also alleged to have stated "I do Heroin." See, superceding information dated September 20, 2013, p 1.

Officer Chad Poidomani recovered "one (1) clear plastic pipe containing a beige, powdery substance" from "in between the seat cushions in the back rear seat on the driver's side." of the vehicle. See, superceding information dated September 20, 2013, p 2.

Defendant is also alleged to have a suspended driver's license. See, superceding information dated September 20, 2013, p 2.

LEGAL ANALYSIS

(A) Defendant's Motion to Dismiss Pursuant to CPL Sec. 30.30.

The top count of both the original Criminal Court Complaint dated April 16, 2013, as well as the superceding information dated September 20, 2013 is a Class A misdemeanor. Thus, 90 days is the applicable time limit. See, CPL Sec.30.30(1) ( c); People v. Cooper, 98 NY2d [*3]541, 543, 750 NYS2d 258 (2002) ("CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.")

Defendant was arrested on April 16, 2013, and arraigned the same day. The People stated not ready. The matter was adjourned to May 16, 2013, however, prior to that date, on May 13, 2013, the People filed a Statement of Readiness accompanied by a DMV abstract.

The Court informed the People that they were without a corroborating affidavit from the arresting officer, which on that basis alone, rendered the People not converted on any of the charges. In particular, the Court also noted that the People did not possess a laboratory report to convert the charge of Criminal Possession of a Controlled Substance in the Seventh Degree.

Thus, the Statement of Readiness dated May 16, 2013 was ineffective, and the time from April 16, 2013 to May 16, 2013 (29 days) is charged to the People as to all charges. This calculation excludes the day of arraignment from the Court's calculations. See, People v. Stiles, 70 NY2d 765, 520 NYS2d 745 (1987); People v. Eckert, 117 Misc2d 504, 458 NYS2d 494 (City Ct., Syracuse, 1983).

On May 16, 2013, the matter was adjourned for conversion to July 22, 2013, however, on May 31, 2013, the People filed a Statement of Readiness with a superceding information and a toxicology report. Under People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888 (1985),"there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court...or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record..."

The filing made by the People on May 31, 2013 would satisfy this requirement for all charges present on the docket, except for Criminal Possession of a Controlled Substance in the Seventh Degree.[FN1] Despite the Court's admonition to the People that a laboratory analysis was required to convert that charge, to date the People have failed to serve a laboratory analysis.

The People argue that under People v. Kalin, 12 NY3d 225, 230, 878 NYS2d 653 (2009), "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same [*4]offense, they should be given a fair and not overly restrictive or technical reading." Citing, People v. Konieczny, 2 NY3d 569, 575, 780 NYS2d 546 (2004), citing, People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000).

Thus, under Kalin, "the sworn allegations by the arresting officer were sufficient to satisfy the requirements of an information." See, People v. Jennings, 34 Misc 3d 137(A), 946 NYS2d 68 (App Term, 2d, 11th and 13th Dist, 2011); People v. Mack, 29 Misc 3d 140(A), 920 NYS2d 243 (App Term, 1st Dept, 2010). On this basis, then, the People asseert that a laboratory report is unnecessary to convert the charge of Criminal Possession of a Controlled Substance in the Seventh Degree.

However, the Kalin Court warned that "standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement." 12 NY3d at 229. In fact, those factual allegations must "provide some information as to why the officer concluded that the substance was a particular type of illegal drug." See, People v. Oliver, 31 Misc 3d 130(A), 927 NYS2d 818 (App Term, 2d, 11th and 13th JD, 2011) p 2, citing Kalin, 12 NY3d at 231-232, lv app den, 17 NY3d 954, 936 NYS2d 80 (2011). Only if this requirement is satisfied do the allegations in the complaint give a defendant "sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy." Oliver, 31 Misc 3d 130(A), p 2, citing Kalin, 12 NY3d at 231-232.

Here, the officer asserts that the substance recovered is Heroin. The officer states that he recovered "one (1) clear plastic pipe containing a beige, powdery substance." See, superceding complaint dated September 20, 2013, p 2. The officer further asserts that he has received training "in the recognition of controlled substances and its packaging." See, superceding compliant dated September 20, 2013, p 2.

The complaint describes the "packaging" of the controlled substance recovered as "one clear plastic pipe." To this Court's knowledge, a "plastic pipe " is not "packaging" which, in and of itself, would commonly indicate to anyone, trained or otherwise, the presence of Heroin.

On May 16, 2013, this Court informed the People that the allegations stated in the Criminal Court complaint were conclusory, in that they failed to enumerate any "packaging" by which the officer could reasonably ascertain the presence of a controlled substance in the "plastic pipe" recovered. As such, the People were notified that their complaint violates the standards for "the requirements of an information" as enumerated in Kalin, making prosecution of the Defendant for this charge of this accusatory instrument a violation of his right to due process. See, People v. Nunn, 24 Misc 3d 944, 882 NYS2d 887 (Crim Ct, Kings Cty, 2009). See, also, Kalin, 12 NY3d at 231-232; Oliver, 31 Misc 3d 130(A), p 2.

The Court then gave the People the opportunity to cure the defect in the complaint, and file a laboratory analysis. Having failed to do so, the People have no cause to complaint about being charged with the time between May 16, 2013 and July 22, 2013 regarding the count of [*5]Criminal Possession of a Controlled Substance in the Seventh Degree.

Therefore, regarding the count of Criminal Possession of a Controlled Substance in the Seventh Degree, the People are charged with another 78 days for the time between May 16, 2013 and July 22, 2013. All other counts are charged 16 days for this time period.

On July 22, 2013, Defendant failed to appear for court, and a warrant was issued for his arrest. That warrant was vacated on July 26, 2013. Bail was set, and the matter was adjourned to July 31, 2013 for further proceedings. This time is excluded. See, CPL Sec. 30.30(4)( c); People v. Notholt, 242 AD2d 251, 254, 662 NYS2d 297 (1st Dept, 1997).

On July 31, 2013, Defendant requested a schedule for the filing of the instant motion. Since all subsequent adjournments have been for the purpose of considering Defendant's motion to dismiss, all further time is excluded under CPL Sec. 30.30(4)(a).

Regarding the charge of Criminal Possession of a Controlled Substance in the Seventh Degree, if we add the 29 days charged to the People between April 16, 2013 and May 16, 2013 to the 78 day charged to the People between May 16, 2013 and July 22, 2013, the People are charged with a total of 96 days to date for this count.

Therefore, Defendant's motion to dismiss the charge of Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to CPL Sec. 30.30 is granted.

Regarding all other charges, if we add the 29 days charged to the People between April 16, 2013 and May 16, 2013 to the 16 day charged to the People between May 16, 2013 and July 22, 2013, the People are charged with a total of 45 days to date.

Therefore, as to all other charges on the docket, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.

( C) Other Relief Requested

Defendant has moved for suppression of all physical evidence seized, statements made to and identification procedures conducted by law enforcement personnel.

These motions are granted to the extent of ordering a pre-trial hearing at which the issue of whether or not said physical evidence and statements made are admissible. See, Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961); People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965); People v. Johnson, 134 Misc 2d 474, 511 NYS2d 773 (Crim Ct, Qns Cty, 1987).

Defendant is also granted a pre-trial hearing at which the issue of whether or not there was probable cause for Defendant's arrest will be considered. See, People v. Dunaway, 442 US [*6]200, 99 S Ct 2248, 60 L Ed2d 824 (1979)

Since the People assert that no identification procedure was conducted, the motion to suppress this evidence is denied.

Defendant also seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant will be conducted by the trial judge, prior to any trial of this matter.

All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkOctober 1, 2013

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1: The Defense asks that this Court not accept partial conversion of the Criminal Court complaint. However, this Court accepts that the People can be ready on some charges, since "each count of an accusatory instrument is deemed as a matter of law to be a separate and distinct accusatory instrument.'" See, People v. Brooks, 190 Misc 2d 247, 250, 736 NYS2d 823 (App Term, 1st Dept, 2001), citing People ex rel Ortiz v. Commissioner NYC Dept of Corrections, 253 AD2d 688, 689, 678 NYS2d 91 (1st Dept, 1998), aff, 93 NY2d 959, 694 NYS2d 340 (1999); See, also, People v. Gray, 7 Misc 3d 127(A) (App Term, 2d and 11th Jud Dists, 2004).