People v Smith

[*1] People v Smith 2016 NY Slip Op 51214(U) Decided on August 16, 2016 County Court, Orange County Brown, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2016
County Court, Orange County

The People of the State of New York,

against

Donnie Smith, Defendant.



3416-2016



LEGAL AID SOCIETY OF ORANGE COUNTY, INC.

Attorney for Defendant

2 Court Lane

Goshen, New York 10924

ORANGE COUNTY DISTRICT ATTORNEY

40 Matthews Street

Goshen, New York 10924
Craig Stephen Brown, J.

UPON reading and filing the within Notice of Motion to Reargue, dated July 13, 2016, submitted by Donalda Gillies, Esq., of the Legal Aid Society of Orange County, Inc., attorney for defendant, the Affirmation in Kelle K. Grimmer, Esq., Assistant District Attorney for the County of Orange, dated July 19, 2016, the Decision and Order of Hon. Edward T. McLoughlin, J.C.C, dated June 9, 2016, and upon all the papers and proceedings had herein, it is hereby Ordered that the defendant's application is decided as follows:

The defendant moves to reargue the Court's Decision and Order, dated June 9, 2016, which denied defendant's motion to dismiss the Indictment brought pursuant to CPL §§190.50(5)(a) and 210.20.

The procedural history underlying this application generally is not in dispute. On February 16, 2016, defendant was arrested and charged with the misdemeanors of Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01[2]), Criminal Mischief in the Fourth Degree (§145.00[1]), Menacing in the Second Degree (Penal Law §120.14[1]) and Endangering the Welfare of a Child (Penal Law §260.10[1]), all allegedly committed at 11:30 P.M. on February 15, 2016. On February 16, 2016, he was arraigned in the Justice Court of the Town of Waywayanda. Bail was fixed in the amount of $2,000.00 cash or $6,000 insurance company bond and defendant was remanded to the Orange County Jail in lieu of bail. Defendant thereafter made appearances with counsel in the Waywayanda Town Court on March 24, 2016 and April 28, 2016. While the misdemeanor charges were pending in the Town Court, the District Attorney presented the case to a Grand Jury. No Notice of Presentation to the Grand Jury (hereinafter referred to as "CPL §190.50 notice") was given to defendant or his attorney. An Indictment was filed on May 18, 2016, charging defendant with Criminal Possession of a Weapon in the Third Degree (Penal Law §265.01[1]) and related charges, all stemming from the February 15, 2016 incident.

Following defendant's arraignment on the Indictment, defendant's attorney timely filed a motion pursuant to CPL §§190.50(5)(a) and 210.20 to dismiss the Indictment on the ground that a CPL §190.50 notice was not given to defendant. In a Decision and Order dated June 9, 2016, the Court denied the motion on the ground that the District Attorney was under no obligation to serve a CPL §190.50 notice since defendant was not arraigned on an undisposed felony complaint.

Defendant submitted this motion to reargue, contending that the Court overlooked constitutional arguments raised in his motion and failed to consider the case law set forth in People v Ijnace (74 Misc 2d 850) and People v Nunziata, (2001 NY Slip Opinion 40292U).

In People v Ijnace, supra., defendant was arraigned on a felony complaint. The District Attorney reduced the felony to a misdemeanor and then gave notice, pursuant to CPL §170.20(2) to obtain a stay of local court proceedings with intent to present the case to a Grand Jury. The Court held this to be improper since it had the effect of keeping defendant in custody on a misdemeanor while awaiting Grand Jury action and without affording defendant the ability to plead guilty to the misdemeanor, all of which circumvented defendant's right to be released from custody pursuant to CPL §180.80.

In People v Nunziata, supra, defendant was charged by way of a felony complaint. The District Attorney served a CPL §190.50 notice at the time of the arraignment. The felony was then reduced to a misdemeanor. The District Attorney subsequently attempted to obtain a stay of local court proceedings by serving a CPL §170.20(2) notice. However, the Court refused to grant a stay holding that a CPL §170.20(2) application for a stay may not be made when a felony charge is reduced to a misdemeanor since it would circumvent a defendant's right to be released from custody pursuant to CPL §180.80.

The facts of Ijnace and Nunziata, supra., have no similarity to the facts of the present case. In Ijnace and Nunziata, the prosecutor reduced the pending felony charges to misdemeanors and attempted to obtain a stay of the local court proceedings with intent to present the felony charges to a Grand Jury. Both Ijnace and Nunziata held that such procedure was unauthorized. However, no such procedure was employed in this case. In the instant case, [*2]defendant was free to enter a guilty plea to the charges pending in the local justice court, which may well have precluded a prosecution of the indictment on Double Jeopardy grounds

Defendant also contends that the Indictment should be dismissed because the District Attorney failed to follow the procedures followed by the District Attorney in People v Brancoccio (189 AD2d 525, lv. ap. den. 83 NY2d 638).

In Brancoccio, supra., defendant was arrested for the misdemeanors of Criminal Trespass in the Second Degree and Criminal Mischief in the Fourth Degree. The Assistant District Attorney gave oral notice to defendant and to the Court for a stay pursuant to CPL §§170.20(2) and a CPL §190.50 notice to defendant. After defendant was indicted for a felony, but before the Indictment was filed, the defendant returned to Criminal Court, entered a plea of guilty to Criminal Trespass in the Second Degree and was sentenced to ninety days in jail. Thereafter, the Indictment was filed. The Court held that defendant's motion to dismiss the Indictment based on Double Jeopardy grounds was properly denied on the ground that the local court had no jurisdiction to accept a plea of guilty to a misdemeanor by virtue of the CPL §170.20(2) notice and the voted Indictment. Although relied on by defendant to support his motion, the Appellate Division's decision acknowledged that there is "secretness that surrounds the prosecutor's Grand Jury action" where, as here, no CPL§170.20(2) notice was given to defendant. The failure of the District Attorney to serve notice pursuant to CPL §170.20(2) in the instant case would have permitted the defendant, SMITH, to plead guilty in the local court which likely would have resulted in dismissal of the instant indictment on Double Jeopardy grounds if the plea had been entered prior to the filing of the indictment.

In essence, the People proceeded with the Grand Jury presentation at their own peril by failing to serve notice pursuant to CPL §170.20(2), just as the defendant proceeded with the case without entering a guilty plea in the local justice court, knowing that he had a predicate conviction which could form the basis for a felony charge.[FN1]

According to the Affirmation submitted by defendant's attorney in support of the motion, the Brancoccio "case was included to show how this situation is supposed to be handled- and to highlight that the statutory procedures were not followed in any respect in the instant case". The allegations made by defendant's attorney are simply incorrect. Contrary to the allegation of defendant's attorney, the District Attorney has no obligation to obtain a CPL §170.20(2) stay of local court proceedings. CPL §170.20(2) permits, but does not require, the prosecutor to request a stay as a condition precedent to presenting a case to a Grand Jury (See, People v Davenport, 293 AD2d 625, app. den., 98 NY2d 709).

Defendant contends that his motion to dismiss should be granted on Constitutional grounds. However, none of the three cases cited by defendant in support of the motion were decided on Constitutional grounds, nor did any of them cite the Federal or State Constitutions. Moreover, none of the cases cited by defendant in support of his motion impose an obligation on a District Attorney to provide Grand Jury notice to a defendant charged with a misdemeanor.

The District Attorney's obligation to notify a defendant of a Grand Jury presentation is purely statutory. CPL §190.50(5) provides:

. . . The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposedof felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding . . .

The relevant facts of this case are identical to those in People v. Ortiz (150 Misc 2d 602). Ortiz was charged in the local criminal court with Driving While Intoxicated, as a misdemeanor, although he had a prior DWI conviction warranting a felony prosecution. The District Attorney did not give CPL §190.50 notice to defendant nor did the District Attorney give CPL §170.20(2) notice for a stay of local court proceedings pending submission of the case to a Grand Jury. Defendant's motion to dismiss the Indictment based on the District Attorney's failure to serve a CPL §190.50 notice was denied. The Court held that a CPL §190.50 notice is not required when a defendant is not charged by a felony complaint.

Although Ortiz was decided by a Court of concurrent jurisdiction and not entitled to stare decisis effect, this Court adopts its holding in light of the clear and unambiguous language set forth in CPL §190.50.

A motion to reargue may be granted upon a showing that the Court overlooked or misapprehended facts or the law in its original decision (See, CPLR 2221[d][2]). This Court has reviewed and considered the arguments raised by the defendant and finds that the prior Decision and Order of the Court did not fail to consider any facts or the applicable law.

Based on the foregoing, defendant's motion to reargue is denied.

The aforesaid constitutes the Decision and Order of the Court.

Dated:August 16, 2016

Goshen, New York

E N T E R

_______________________________

HON. CRAIG STEPHEN BROWN

COUNTY COURT JUDGE

Footnotes

Footnote 1:Not only was defendant aware of his prior conviction, but his attorney was as well, given that a criminal history report was provided in the local justice court.