People v McBean

[*1] People v McBean 2016 NY Slip Op 26130 Decided on March 18, 2016 City Court, Tompkins County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 18, 2016
City Court, Tompkins County

People of the State of New York,

against

Sherwin McBean, Defendant.



2016-90582



ADA Diane Lama

Tompkins County District Attorney's Office

320 N. Tioga Street

Ithaca, NY 14850

William E. Furniss, Jr. Esq.

122 S. Cayuga Street

Ithaca, NY 14850
Scott A. Miller, J.

The Defendant is charged with two felonies, one count of Burglary in the Second Degree (Penal Law §140.25) and one count of Sexual Abuse in the First Degree (Penal Law §130.65[2]). Defendant is also charged with three misdemeanors, Forcible Touching (PL §130.52), Criminal Trespass in the Second Degree (Penal Law 140.15), and Obstructing Governmental Administration in the Second Degree (Penal Law §195.05). Defendant was arraigned with counsel on March 13, 2016, a not guilty plea was entered, and bail was set at $2,500.00 cash /$5,000.00 bond. A felony preliminary hearing was scheduled by the Court to commence on March 18, 2016 at 2:00 p.m. Defendant posted bail and Defendant appeared with counsel for the scheduled felony preliminary hearing. Defendant did not waive his right to a felony preliminary hearing. By e-mail dated, March 16, 2016, the People stated that they would not be presenting any evidence at such hearing and acknowledged that the Defendant must be released upon his own recognizance. Defendant opposed ROR, and requested that the Court dismiss the felony complaints pursuant to CPL §180.70(4).

The Court finds that a felony preliminary hearing never commenced in this case. CPL §180.70 mandates dismissal of a felony complaint only if a felony preliminary hearing has actually commenced and the Court concludes the People have not met their burden at such hearing.

Here, the People frankly stated they had no intention of commencing a felony preliminary hearing. Therefore, CPL §180.80 controls and the Court "must release [Defendant] on his own recognizance" where the People have failed to comply with the timely "commencement of a hearing." CPL §180.80. There is no statutory authority by which this Court can order the People to actually commence a preliminary hearing. A clear reading of CPL §180.80 stands for the proposition that the Court must ROR a Defendant when a preliminary hearing is not timely held. The Court has done so. Defendant is ROR'd. Dismissal is not authorized by statute. The felony complaints and misdemeanor accusatories remain pending in Ithaca City Court and are placed on the six month felony control calendar. See, People v. Hogan, 5 Misc 3d 151 (Rochester City Ct 2005); cf. People v. Cleghorn, 190 Misc 2d 421 ( Cayuga Heights Just Ct 2001).

This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

DATED: March 18, 2016

________________________________________

SCOTT A. MILLER

Ithaca City Court Judge