People v Askew

[*1] People v Askew 2019 NY Slip Op 29331 Decided on October 31, 2019 County Court, Sullivan County LaBuda, 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 October 31, 2019
County Court, Sullivan County

People of the State of New York

against

Timothy Askew, Defendant.



1429-2019



Howard Block, Esq.

Attorney for Defendant

26 Central Avenue

PO Box 480

Kauneonga Lake, New York 12749

hblock2000@cs.com

Hon. James Farrell

Sullivan County District Attorney's Office

414 Broadway

Monticello, New York 12701

James.Farrell@co.sullivan.ny.us
Frank J. LaBuda, J.

The Defendant has moved this Court by way of Order to Show Cause for a Stay of the Defendant's Judgment of Conviction rendered in the Town of Mamakating Justice Court on June 27th, 2019, wherein the Defendant was convicted, after a jury trial, of Driving While Intoxicated and sentenced to ninety (90) days incarceration. At the time of sentencing the Defendant made an oral application to the Town Justice for a stay of his sentence and the stay was granted over objection of the Prosecution. Since the Prosecution opposed the stay, a hearing was held on October 10th, 2019 at which time the stay was vacated by the Town Justice [FN1] . Nonetheless the Defendant remained at liberty throughout these proceedings having previously posted bail on the original charge and the Prosecution's failure to request an order of remand upon the Town Justice's vacating the stay.

The Defendant's Order to Show Cause asks this Court for a stay pending his appeal. The Defendant intends to argue several errors of law committed by the Town Justice; to wit, failure to grant a trial order of dismissal for a Brady violation for failure of the People to preserve a Police video recording of the Defendant at the Village of Monticello Police Station. Further, the Defense intends to argue that the trial court abused its discretion when it denied the Defendant's Motion to dismiss for Double Jeopardy. The Defendant argues that since a jury panel was called in the Village of Monticello, the Court of original jurisdiction, and a mistrial was declared and the case was thereafter transferred to the Town of Mamakating Court such a change of venue violated his rights to be tried by a single tribunal in the Court of original jurisdiction. Thereafter, the Defendant claims that the venue of the case was transferred to the Town of Mamakating where a second jury was impaneled and he was convicted. The Prosecution denies this allegation and states that the Prosecution and Defense were never able to secure a full jury panel in the Village of Monticello and no jurors were ever sworn there [FN2] .

The Prosecution argues against the stay of the Defendant's sentencing and asks the court to immediately impose the sentence as previously determined by the Town Court. The Prosecution argues that the likelihood of the Defendant's success on appeal is a factor initiating denial of the stay. The Prosecution maintains that the Defendant's Brady violation appeal is without merit since the trial Court sanctioned the Prosecution for their Brady violation by precluding testimonial evidence of the Defendant's refusal to take a breath test and testimonial evidence of the Defendant's intoxication while at the police station. The prosecution argues that this sanction was a severe remedy for their Brady violation and does not warrant a reversal of the conviction. The Prosecution also argues that the Defendant's claim of a Double Jeopardy violation based upon an alleged mistrial is likewise without merit. The Prosecution alleges that three unsuccessful attempts were made in the Village of Monticello to impanel a jury, and since no jury panel was successfully impaneled, Double Jeopardy did not attach, and a change of venue was appropriate.

Finally, the people argue that pursuant to CPL §460.50(3) not more than one application for a stay of conviction can be made under this section and that the Defendant's request for a stay should be summarily denied on the law because this is the Defendant's second application for a stay following his request before the Town of Mamakating Justice Court on June 29th, 2019, at the time of sentencing.

Opinion

The issues before this Court are whether the application at bar for a stay is a second application pursuant to CPL §460.50(3), and whether or not the stay by this Court pending appeal should be extended pursuant to CPL §510.30, and whether Double Jeopardy precluded a change in venue under CPL§170.15 (3)(b).

This Court granted the People's request for a change of venue pursuant to CPL§170.15(3)(b) which provides for a change of venue when a court is unable to form a jury in a case in which the defendant is entitled to and has requested a jury trial. The Prosecution alleges [*2]that this Defendant did not object to the change of venue application or object to this Court's selection of the Town of Mamakating Justice Court before or during trial [FN3] . The Prosecution argues also that this issue was not preserved for appeal by failure of the Defense to object to the change of venue motion. Therefore, the Defendant's possibility of success on appeal on this issue is negligible, which is a factor that is considered by this Court in denying a stay.

CPL §460.50(3) states that "not more than one application for a stay may be made pursuant to this section". The Prosecution argues that Defendant's pre-appeal application for a stay before this court must be summarily denied since this application is the Defendant's second application for a stay and the Defendant first application for a stay was initially granted by the Town of Mamakating Justice. The Defendant argues that his first request for a stay of his conviction was made at the time of sentencing in the Town of Mamakating and "should not be counted as it was made orally and not in writing". The Court rejects Defense Counsel's argument as under CPL §460.50 (3) the form of the application is of no moment.

The Town of Mamakating Justice Court, upon oral request from Counsel [FN4] , granted the oral application at the time of sentencing, over objection, and temporarily stayed the Defendant's Conviction from the date of sentencing June 29th, 2019 until such time as the parties were heard on the matter on October 10th, 2019. After said hearing the Town Justice vacated the stay and the Prosecution failed to ask for an immediate remand of the Defendant.

CPL §460.50, in its pertinent part, states:

" that upon application of a defendant who has taken an appeal [emphasis added] to an intermediate appellate court from a judgment or from a sentence of a criminal court, a judge designated in subdivision two may issue an order both (a) staying or suspending the execution of the judgment pending the determination of the appeal, and (b) either releasing the defendant on his own recognizance or fixing bail pursuant to the provisions of article five hundred thirty." [See CPL §530.30].

Pursuant to this statute, the taking of an appeal is a jurisdictional prerequisite to the consideration of a CPL §460.50 stay application. Therefore the Defendant's request for a stay at the time of sentencing cannot be considered an "application" within the meaning of CPL §460.50 because it was prior to the filing of his Notice of Appeal and not made to this intermediate appellate court [FN5] . Thus the instant application is the Defendant's first application.

The Court of Appeals in Morganthau v. Rosenberger, 86 NY2d 826 [Court of Appeals, 1995] held that a "post sentence application is void and of no effect when the prerequisite appeal has not been established." In Morganthau v. Rosenberger, supra, the District Attorney moved [*3]the court for a Writ to prohibit a Justice of the Appellate Division from entertaining an application for bail pursuant to CPL §460.50. The Court held that the bail request made after sentencing but prior to the Notice of Appeal could not be considered an "application" under CPL §460.50 because the filing of an appeal was a jurisdictional prerequisite for consideration under this section and this Defendant had not filed a Notice of Appeal.

The Court will address the issue of whether this Defendant will be likely successful on his appeal as a factor pursuant to CPL §510.30(2)(b) which provides that "where the principal is a defendant/appellant in a pending appeal from a judgment of conviction, the court must [emphasis added] also consider the likelihood of ultimate reversal of the judgment. During the three month period from sentencing of the Defendant to the lifting of the stay by the Town Justice, the Defendant has remained on bail and has not perfected his Appeal, nor obtained a transcript of the prior proceedings which are a prerequisite for an appeal.[FN6] This Court has considered the likelihood of the ultimate reversal of the judgment and does recognize that Counsel may raise several cognizable appellate issues upon a full review of the proceedings transcripts, notwithstanding the Prosecution's statement that the Defendant's issues are simply without merit.

The Defendant by Order to Show Cause before this Court filed on October 7th, 2019 (116 days after sentencing) has asked this Court to stay the defendant's sentencing and has asked this Court to instruct the Town Court to release a transcript of the prior proceeding. Although application to this Court for transcripts is not required nor necessary, the Court will grant the application herein in order to expedite this appeal process.

At the time that the stay was vacated on October 10th, 2019 and since then the defendant was not remanded (apparently without objection), therefore this Court will grant the Defendant's request for a stay and continue the Defendant on bail pending this Appeal pursuant to CPL §460.50.

It is therefore

ORDERED, that the stay is granted for a period of sixty (60) days from the date from the filing of this Order, and it is further

ORDERED, that the Defendant/Appellant shall continue on bail as previously posted.

ORDERED, that the Appellant shall perfect the appeal on or before December 31st, 2019; and it is further

ORDERED, that the Town of Mamakating and the Village of Monticello Justice Courts shall provide appellant and respondent with a transcript of the trial and all proceedings forthwith.

This shall constitute the Decision and Order of this Court.

DATED: October 31st, 2019

Monticello, New York

____________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge & Surrogate

Intermediate Appellate Judge of Sullivan County Footnotes

Footnote 1:Hon Cynthia Dolan, Esq., Town of Mamakating Justice

Footnote 2:It is uncertain on this record what basis the Defense claims a mistrial occurred in the Village of Monticello Court as the change of venue motion was based on the failure to impanel a jury and no jurors were sworn.

Footnote 3:At this juncture there is no Record on Appeal before this Court.

Footnote 4:Defendant was represented by Karen Manino, Esq of the Sullivan Legal Aid Panel, Inc.

Footnote 5:The Defendant was sentence on June 27th, 2019 and simultaneously requested the Trial Court to issue a stay which it did. On June 29th, 2019, the Defendant filed his Notice of Appeal and on October 7th, 2019 the Defendant/appellant made his first application pursuant to CPL§460.50 to this intermediate appellate Court to stay his conviction on appeal.

Footnote 6:See Decision of this Court in People v. Luis Perez, 2019 NY Misc. Lexis 4952, 2019 NY Slip Op 51472(U) regarding appeals pursuant to CPL §460.10.