People v Hasson

[*1] People v Hasson 2021 NY Slip Op 21367 Decided on December 27, 2021 Criminal Court Of The City Of New York, Queens County Kirschner, 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 December 27, 2021
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

Victoria Hasson, Defendant.



Docket No. CR-005988-21QN



For Defendant:

Randall Unger, Esq.

718-614-6496

For the People:

Nicole Reid, Assistant District Attorney

Office of the Queens District Attorney

718-286-6123
David J. Kirschner, J.

By motion filed on November 2, 2021, defendant moves to dismiss the accusatory instrument in the above-captioned matter pursuant to Criminal Procedure Law § 30.30 (1) (a). The People, in papers dated December 1, 2021, oppose. After review of the papers on file with the court, the respective arguments therein, the accusatory instrument, other papers on file with the court, and prior court proceedings, this Court denied defendant's motion by decision and order dated December 16, 2021. This expands that decision.

I. Background and Procedural History

Defendant is charged by felony complaint with one count of criminal contempt in the first degree (Penal Law § 215.51), a class E felony, and one count of petit larceny (Penal Law § 155.25), a class A misdemeanor.

These charges stem from events alleged to have occurred on October 17, 2020, at approximately 10:20 PM, inside of 89-29 163rd Street in Queens County. At that time, defendant allegedly engaged the complaining witness, her ex-boyfriend, in a verbal dispute during which defendant grabbed her dog without permission or authority to do so and left the location.

Further, the arresting officer alleges that she reviewed an order of protection issued on [*2]behalf of the complainant by the Honorable Toni Cimino, of Queens County Criminal Court, under docket CR-008422-19QN, which is in effect until March 20, 2024. She also alleges that upon review of a printout of defendant's arrest record, defendant was previously convicted of criminal contempt in the first degree under Queens County indictment number 00843/2019, on August 14, 2020.

Defendant was arrested, and subsequently arraigned, on March 20, 2021. Given that he was already in custody on a pending Queens County Supreme Court matter (Part K15), nominal bail was set, and the matter was adjourned to March 24, 2021, in Part T-7.

On March 24, 2021, April 7, 2021, May 4, 2021, May 26, 2021, and June 2, 2021, this matter appeared on the Part T-7 calendar for grand jury action. On June 2, 2021, however, the People offered one year incarceration to run concurrently with his one-and-a-half to three-year sentence imposed on the Supreme Court matter. The matter was adjourned to June 7, 2021, and then June 29, 2021, in Part T-7 for possible disposition.

On July 29, 2021, the Department of Correction produced defendant, but declined to bring him to the courtroom due to his contumacious conduct. The matter was adjourned to August 12, 2021.

On August 12, 2021, the Department of Correction again produced defendant, and again declined to bring him to the courtroom due to his contumacious conduct. The matter was adjourned to August 19, 2021.

On August 19, 2021, and the following court appearance, September 9, 2021, defense counsel requested adjournments to discuss the plea offer with defendant. The matter was adjourned to October 5, 2021, and marked final for disposition or grand jury action.

On October 5, 2021, defense counsel indicated he intended to file the instant motion. The matter was adjourned to November 16, 2021, for that purpose.

On November 2, 2021, defendant filed the instant motion to dismiss the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (a). On November 16, 2021, the People requested additional time to respond, and the matter was adjourned to December 16, 2021, for decision. On December 1, 2021, the People filed their response opposing defendant's motion.

II. Discussion

A. Criminal Procedure Law § 30.30 (1) (a)

Criminal Procedure Law § 30.30 (1) (a) was enacted to serve the narrow purpose of ensuring prompt prosecutorial readiness for trial (People v Brown, 28 NY3d 392 [2016]; People v Price, 14 NY3d 61 [2010]; People v Sinistaj, 67 NY2d 236 [1986]). Being ready for trial requires two elements (People v Chavis, 91 NY2d 500, 505). First, the People must state their readiness on the record in open court, or in a written notice served on defense counsel and filed with the court (id.). Second, the People must in fact be ready to proceed at the time they declare readiness (id.). Mere statements of predictions or expectations of future readiness are insufficient (People v Kendzia, 64 NY2d 331, 337).

To determine whether the People have satisfied their obligation of trial readiness, the time elapsed between the filing of the first accusatory instrument is calculated along with the People's declaration of readiness, less any periods of delay excludable under the statute terms (see CPL 30.30 [4] & [5]). "The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" (Price, 14 NY3d at 64). Once the defendant has alleged that the People [*3]were not ready within the statutory period, the People must establish an applicable exclusion (Brown 28 NY3d at 403, People v Luperon, 85 NY2d 71, 81 [1995]).

To prevail on a motion to dismiss pursuant to CPL § 30.30 (1) (a), a defendant must present sworn allegations of fact establishing an unexcused delay in excess of the statutory limit (People v Allard, 28 NY3d 41 [2016]; Cortes, 80 NY2d 201, 215-216 [1992]; People v Santos, 68 NY2d 859, 861 [1986]; People v Lomax, 50 NY2d 351, 357 [1980]). At minimum, the defendant must claim that the People failed to announce their readiness for trial within the statutorily prescribed period (Allard, 28 NY3d at 41, People v Luperon, 85 NY2d 71, 77-78 [1995]). Until the People make the initial statement of readiness, all delays are chargeable entirely to the People absent the defendant's consent (pre-readiness delay).

Once the defendant has shown the existence of delay beyond the statutory period, the burden of proving that certain periods should be excluded falls on the District Attorney (Allard, 28 NY3d at 41; Kendzia, 64 NY2d at 338; People v Berkowitz, 50 NY2d 333, 349 [1980]). If the District Attorney fails to do so, the motion must be summarily granted (CPL 210.45 [4]).

Beginning January 1, 2020, CPL 30.30 underwent major changes. The ability of the People to declare ready for trial is now tied to their greatly expanded discovery obligations (see CPL 30.30 [5]). Prior to declaring their readiness, the People must provide a certificate of compliance with those discovery obligations (id.). And the prosecution shall not be deemed ready for purposes of section 30.30 until it has filed a proper certificate of compliance pursuant to CPL § 245.50 (1) (see CPL 245.50 [3]).

Here, the People had six months to declare and maintain their readiness on the accusatory instrument, where defendant is accused of one or more offenses, at least one of which is a felony (CPL 30.30 [1] [a]). Defendant asserts, however, that the People failed to file either a certificate of compliance or statement of readiness. Accordingly, defendant claims, that since more than six months have passed since the commencement of the case, the court must dismiss the felony complaint. He is correct; when the People fail to file a certificate of compliance that time is chargeable to the People unless a valid exclusion is present. (see CPL 245.50 [3]). And the newly enacted discovery laws in 2020 did nothing to change those statutorily excludable adjournments. The question now presented, though, is not whether speedy trial time has expired—it may indeed have—but whether this court has the statutory authority to entertain defendant's motion.

B. Local Criminal and Superior Court Jurisdiction

Generally, a local criminal court has trial jurisdiction over all matters, other than felonies (see CPL § 10.30 [1] [emphasis added]). A superior court, conversely, has exclusive trial jurisdiction over all felonies through the agency of their grand juries (see CPL § 10.20 [2]). In other words, local criminal courts have "preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries." CPL § 10.30 (2). As such, when a felony case is adjourned in local criminal court, for what is commonly referred to as "grand jury action", it is limited to exercising preliminary jurisdiction. A local criminal court has 'preliminary jurisdiction' when, regardless of whether it has trial jurisdiction, it may commence a criminal action and conduct proceedings that lead to prosecution and final disposition in a court having trial jurisdiction. CPL § 1.20 (25).

Simply put, this means a defendant can neither plead guilty nor be tried on a felony complaint in criminal court. In fact, other than an arraignment, the local criminal court can do little other than wait for the grand jury to exercise its power either by issuing a true bill or [*4]dismissing the charges (see CPL § 1.20 [8]). In essence, it serves as a placeholder for the grand jury and may adjudicate ancillary issues such as hardship hearings, substantial proprietary deprivation hearings, and discovery disputes. A local criminal court may, of course, accept applications to dismiss felony charges thus giving it trial jurisdiction over misdemeanors and non-criminal matters. But so long as felony charges remain, the local criminal court lacks authority to accept a plea or disposition on an accusatory instrument (see CPL § 10.20 [1] [a]). A superior court only has jurisdiction over a matter by reason of and though the agency of their grand juries (see CPL § 10.20 [2]).

C. Dismissal of a Felony Complaint

The Criminal Procedure Law prescribes specific procedures for both local criminal and superior courts vis-a-vis dismissal of a criminal action based upon speedy trial. CPL § 170.30 establishes the timing and grounds for a motion to dismiss a local criminal court accusatory instrument. Specifically, CPL § 170.30 (e) provides

"After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that the defendant has been denied the right to a speedy trial" (emphasis added).

CPL § 210.20 (g), which tracks virtually identical language to CPL § 170.30, provides: "After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that the defendant has been denied the right to a speedy trial" (emphasis added).

Conspicuously absent from CPL §§ 170.30 and 210.20 is any reference to a felony complaint. By omitting "felony complaint" from CPL 170.30, the Legislature clearly intended to reserve such authority for the superior court, which at that point, is in the form of an indictment not a felony complaint. (see Morgenthau v Roberts, 65 NY2d 749 [1985]; see also CPL § 210.20). In this framework, then, it is clear the local criminal court only has jurisdiction to dismiss an information, a simplified information, a prosecutor's information, or misdemeanor complaint. Thus, odd as it may be, a local criminal court lacks statutory authority to dismiss a felony complaint.

D. Criminal Procedure Law § 180.85

Further indicative of the Legislature's intent is found in CPL § 180.85 (1), which provides in pertinent part:

After arraignment of a defendant upon a felony complaint either party or the local criminal court or superior court before which the action is pending, on its own motion, may move for an order terminating prosecution of the charges contained in such felony complaint... (emphasis added).

Subsection 2 further provides: A motion to terminate a prosecution pursuant to this section may only be made where the count or counts of the felony complaint have not been presented to a grand jury or otherwise disposed of in accordance with this chapter filed in writing with the local criminal court or superior court in which the felony complaint is pending not earlier than twelve months following the date of arraignment on such felony complaint (emphasis added).

Notably, unlike CPL § 170.30 (e), CPL § 180.85 gives the local criminal court authority to terminate the prosecution of an unindicted felony complaint. As such, it serves as the controlling [*5]provision for entertaining a motion to dismiss on speedy trial grounds—but only after twelve months following arraignment. Other than the specific procedures for dismissing a case in local criminal court as prescribed in CPL §§ 170.30 and 180.85, then, trial courts may not dismiss criminal proceedings on grounds the legislature never authorized. (see Roberts, 65 NY2d 749 [1985]; see also People v Douglass, 60 NY2d 194 [1983]).

Here, defendant filed the instant motion on November 2, 2021, seven (7) months and thirteen (13) days following his March 20, 2021, arraignment on the felony complaint. Irrespective of whether any or all such time is chargeable to the People, more than twelve months have yet to elapse. Accordingly, this Court is without authority to render a decision on defendant's motion to dismiss and constrained to deny it as premature.

Conclusion

Based upon the foregoing determination that the defendant's motion is premature, it is therefore DENIED with leave to renew at the appropriate time.

This constitutes the decision and order of the Court.

Dated: December 27, 2021

David J. Kirschner, J.C.C.