People v King

[*1] People v King 2017 NY Slip Op 51130(U) Decided on September 13, 2017 Criminal Court Of The City Of New York, Kings County Petersen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2017
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Kenneth King, Defendant.



2016KN074376



Counsel for Defendant: Paul Beyder, Esq., Legal Aid Society

People: Assistant District Attorney, Sydelle T. Exantus
Kim Petersen, J.

The defendant is charged with Criminal Contempt in the Second Degree (Penal Law § 215.50 [3]) and Unlawful Possession of Marijuana (Penal Law §221.05)[FN1] .

By notice of motion and affirmation submitted by Paul Beyder, Esq., dated June 20, 2017, defendant moves to dismiss the action on the grounds that: (1) the People failed to proceed to trial within ninety days of the commencement of the action pursuant to CPL 30.30 (1) (b); and (2) that the People's conversion of the Criminal Contempt charge by means of a certified Department of Motor Vehicles abstract was insufficient, rendering the accusatory instrument defective pursuant to CPL 170.30 (1) (a).

By affirmation in opposition, submitted by Assistant District Attorney Sydelle T. Exantus, dated August 11, 2017, the People oppose the relief sought by the defendant.

(I)

Background

In the instant matter, on December 25, 2016, the defendant was arraigned on a complaint containing one count of Criminal Mischief in the Fourth Degree (Penal Law §145.00) and one count of Unlawful Possession of Marijuana (Penal Law §221.05). The matter was adjourned to December 30, 2016 for conversion, as the supporting deposition was not signed by the complainant.

On December 30, 2016, the People failed to convert the accusatory instrument and were not ready for trial. The matter was adjourned to January 10, 2017. [*2]Accordingly, five (5) days are chargeable to the People.

On January 10, 2017, the People had not converted the accusatory instrument and were not ready for trial. The case was adjourned to March 27, 2017 for conversion or dismissal. Accordingly, eleven (11) days are chargeable to the People.

On January 12, 2017, the People served and filed a statement of readiness, a superseding information charging defendant with Criminal Contempt in the Second Degree (Penal Law §215.50 [3]) and Unlawful Possession of Marijuana (Penal Law §221.05). The People also submitted a certified copy of the underlying order of protection allegedly violated by the defendant, as well as a certified New York State Department of Motor Vehicles Driving Abstract (hereinafter, "NYS DMV abstract").

Specifically, the superseding information alleged that defendant violated a criminal court order of protection issued by the Honorable John Hecht on September 10, 2016, ordering the defendant, among other things, to stay away from the complainant and her home. It is alleged by the People that the defendant violated the order of protection by being present inside the complainant's residence on December 25, 2016.

On March 27, 2017, the defendant was arraigned on the superseding information, the People announced their readiness and the accusatory instrument was deemed converted. The matter was adjourned to May 2, 2017 for discovery by stipulation. No time is chargeable to the People.

On May 2, 2017, discovery materials were served upon defendant in court and the matter was adjourned to June 7, 2017 to commence with hearings and trial. No time is chargeable to the People.

On June 7, 2017, the People were not ready for trial and requested a two-week adjournment. The matter was adjourned to June 18, 2017. Accordingly, fourteen (14) days are chargeable to the People.

On June 28, 2017, the People were not ready for trial and requested a two-week adjournment. The matter was adjourned to July 21, 2017. Accordingly, fourteen (14) days are chargeable to the People.

On July 21, 2017, the People were not ready for trial and did not request that time be charged. At that time, defendant filed the instant motion to dismiss. Accordingly, no time is chargeable to the People.

(II)

Sufficiency of the Information

Criminal Procedure Law ("hereinafter, "CPL") 100.40 (1) provides that an information is sufficient on its face when it substantially conforms with the requirements of CPL100.15; that the allegations provide reasonable cause to believe that the defendant committed the offense charged; and the factual section, along with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offenses (CPL 100.40[1][b], [c]). This prima facie case requirement does not require that the information allege facts that would prove defendant's guilt beyond a reasonable doubt (People v Henderson, 92 NY2d 677 [1999]; People v Jennings, 69 NY2d 103, 115 [1986]. Rather, the information need only contain allegations of fact "give an accused sufficient notice to prepare a defendant from being tried twice for the same offense" (People v Casey, 95 NY2d 354, 360 [2000]); People v [*3]Konieczny, 2 NY3d 569 [2004]). The reviewing court must subject the allegations in the information to a "fair and not overly restrictive or technical reading, assume that those allegations are true, and consider all reasonable inferences that may be drawn from them" (CPL 110.40, 100.15; People v Jackson, 18 NY3d 738, 747 [2012]; see also, People v Casey, supra.).

In the context of determining whether the factual allegations of an information support reasonable cause to believe the defendant committed the crimes charged, the Court refers to the definition of "reasonable cause".

CPL 70.10 provides that "reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence and judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."

(III)

Analysis

(a)

In the instant matter, defendant seeks dismissal on the grounds that the People were not ready for trial within ninety days of the commencement of the action. Specifically, defendant contends that the People could not have been ready for trial because the complaint is facially insufficient as it "alleges only that defendant was inside of 669 Jerome Street, but fails to make specific, non-hearsay, non-conclusory, evidentiary allegations that April Whittingham resided at 669 Jerome Street" at the time the alleged offense occurred (Notice of Motion, ¶ 18, pg. 5,6). To support this claim, defendant contends that the NYS DMV Abstract of Driving Record of April Whittingham, submitted by the People as proof that 669 Jerome Street is the residence of April Whittingham, is hearsay and inadmissible, and, therefore, renders the complaint facially insufficient.

The People maintain that the submission of the certified NYS DMV abstract bearing the complainant's name and address converts the criminal contempt charge as it establishes that the defendant's alleged violation of the order of protection occurred at the complainant's residence.

Although this Court agrees with defendant that the NYS DMV abstract is hearsay, if the abstract is properly authenticated pursuant to CPLR 4540[b], then it may be offered as evidence under CPLR 4520 [FN2] , the public officer's records exception to the hearsay rule (People v Baker, 183 Misc 2d 650 [Co Ct 2000]).

CPLR 4540[b] provides:

Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.

The New York State Department of Motor Vehicles established a new procedure to authenticate abstracts (People v. Azpuru, 2002 NY Slip Op 50341(U), [Crim Ct, New York County 2002]). The new procedure provided for the seal and certification to be electronically placed on each page of the NYS DMV abstract contemporaneously when a driver's identification and driver's record were printed through their computer system (People v. Lovette, 55 Misc 3d 1097, [Crim Ct, New York County 2017]). In connection with NYS DMV abstracts, use of a facsimile of the signature of the officer with legal custody of the original, with his official seal affixed, is common practice (CPLR 4540 [b]).

In the instant matter, the seal and certification of the DMV records were both placed on the document, contemporaneously with the driving record information. The affixation of the seal and signature simultaneously with the insertion of the driving information authenticates the NYS DMV abstract and satisfies CPLR 4540[b] and the public records exception (CPLR 4520) (People v. Lovette, 55 Misc 3d 1097, 1099—100, [Crim Ct, New York County 2017]).

Under these circumstances, the Court finds that the NYS DMV abstract filed by the People was properly authenticated pursuant to CPLR 4540[b] making it admissible under CPLR 4520, which properly converted the complaint to an information.

Further, reviewing the allegations contained in the accusatory instrument, the

certified order of protection and the NYS DMV abstract, collectively, the Court finds the accusatory instrument to be facially sufficient as to the charge of Criminal Contempt in the Second Degree. The factual allegations provide reasonable cause to believe that defendant committed the offense charged by establishing every required element (McKinney's CPL 100.15, 100.40 [1]).

(b)

The Court also finds that defendant's motion to dismiss on the grounds that the People have exceeded their statutory speedy trial time pursuant to CPL 30.30 is without merit.

As noted above, defendant was charged with one count of Criminal Contempt in the Second Degree, a class "A" misdemeanor. Pursuant to CPL 30.30 (1) (b), the People must be ready within 90 days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first [*4]accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute (People v Cortes, 80 NY2d 201 [1992]).

The Court finds that the People are charged with forty-four (44) days of non-excludable time which does not exceed the statutory speedy trial time.

III

Conclusion

Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL 170.30 (1) [e] and CPL 30.30 is denied. Defendant's branch of the motion seeking to reserve the right to make further motions is granted to the extent provided for by CPL 255.20 (3).

This constitutes the Decision and Order of the Court.

Dated: September 13, 2017

Brooklyn, New York

_______________________

Kim Petersen, J.C.C. Footnotes

Footnote 1:The defendant was initially charged with Criminal Mischief in the Fourth Degree (Penal Law 145.00 [1]) and Unlawful Possession of Marijuana (Penal Law §221.05), but on January 11, 2017, the People filed a superseding complaint charging defendant with Criminal Contempt in the Second Degree (Penal Law §215.50 [3]) and Unlawful Possession of Marijuana (Penal Law §221.05).

Footnote 2: Rule 4520. Certificate or affidavit of public officer: Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit to a fact ascertained, or an act performed, by him in the course of his official duty, and to file or deposit it in a public office of the state, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated. NY CPLR 4520 (McKinney)