People v Early

[*1] People v Early 2023 NY Slip Op 50419(U) Decided on May 8, 2023 Justice Court Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2023
Justice Court of the Town of Webster, Monroe County

The People of the State of New York,

against

Richard A. Early, Defendant.



Case No. 22090168


Sandra Doorley, District Attorney, Monroe County (Stephen F. Ryck of Counsel), for plaintiff.

Julie Cianca, Monroe County Public Defender (Griffin Dault of Counsel), for defendant. Thomas J. DiSalvo, J.

The defendant was charged with endangering the welfare of a child, in violation of P.L. § 260.10 (1), and one count of sexual abuse, 3rd degree, P.L. § 130.55. Both informations stated that the alleged crimes occurred on August 12, 2021. He was arraigned on September 23, 2022. Bail was set which resulted in the defendant being remanded to the custody of the Monroe County Sheriff, and the case was adjourned to October 5, 2022. On that date the defense requested that the case be set down for a jury trial, which was then scheduled to pick a jury on January 26, 2023 and for the trial to commence on January 27, 2023. On January 18, 2023 a pre-trial conference was conducted to review the status of the case. During that conference the People announced they would be filing superceding accusatory instruments, whereupon the jury trial was cancelled.The case was then adjourned to February 24, 2023 to have the defendant arraigned on the said superceding accusatory instruments.

The People did file three superceding accusatory instruments charging the defendant with endangering the welfare of a child, in violation of P.L. § 260.10 (1), affirmed on December 22, 2022 by Investigator Sayeh Rivazfar, and now two counts of sexual abuse, 3rd degree, P.L. § 130.55, dated January 5, 2023, executed by Stephen Ryck, as an Assistant District Attorney. The new accusatory instruments alleged that the said crimes occurred on a different date from the original informations filed with the court, to wit: August 10, 2021.[FN1] Included with said accusatory instruments was a supporting deposition given by the minor child in question and that of the child's mother both affirmed on December 22, 2022. The defendant was arraigned on said [*2]charges on February 24, 2023. The attorneys then advised the court that discovery had been completed.

On March 27, 2023 defense counsel filed Omnibus Motions with the court, wherein he argued, among other things, that the new accusatory instruments charging the defendant with sexual abuse in the third degree should be dismissed because those accusatory instruments were prosecutor's informations filed in violation of CPL § 100.50 (2). The People have filed a cross motion and responding affirmation in opposition thereto. Subsequent to a vigorous motion argument on April 19, 2023, the court granted defense counsel's request to submit an additional "letter brief" to supplement his said oral argument.The court has in fact received said letter brief dated May 4, 2023. The court is also in receipt of the People's "letter brief" in response dated May 5, 2023.

Legal Analysis.

Defense counsel argues the superceding accusatory instruments charging the defendant with sexual abuse in the third degree, which were executed by the assistant district attorney, are prosecutor's informations and not misdemeanor informations. A prosecutor's information is defined as

"... a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50 [emphsis added], or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felony. It serves as a basis for the prosecution of a criminal action, but it commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in a local criminal court."[FN2]

Based on that definition the new accusatory instruments charging the defendant with two counts of sexual abuse in the third degree do not appear to be prosecutor's informations. Nevertheless, defense counsel maintains that said new accusatory instruments are prosecutor's informations and that they "... did not result from the action of the Grand Jury nor was done at the direction of this Court or any superior court then they must be filed at the prosecutor's own instance pursuant to CPL 100.50 (2)."

CPL 100.50 (2) states as follows:

"At any time before entry of a plea of guilty to or commencement of a trial of an information, the district attorney may file with the local criminal court a prosecutor's information charging any offenses supported, pursuant to the standards prescribed in subdivision one of section 100.40, by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it. [emphasis added] In such case, the original information is superseded by the prosecutor's information and, upon the defendant's arraignment upon the latter, is deemed dismissed."

Defense counsel argues that the said accusatory instruments do not conform to the requirements of CPL § 100.50 (2) because "they were filed with an additional supporting deposition that was [*3]given some three months after the filing of the original informations in this case.[FN3] In other words, because the original accusatory instruments did not comply with CPL § 100.40 (1) in that they did not contain any non-hearsay allegations, the new accusatory instruments did not comply with CPL § 100.50 (2). He therefore concludes that the so-called prosecutor's informations must be dismissed pursuant to CPL § 170.35 (3) (b). Thus the initial question is whether the new accusatory instruments, charging the defendant with sexual abuse in the thrid degree, are in fact prosecutor's informations?

The prosecutor notes in his letter brief that he incorrectly conceded at oral argument that the new accusatory instruments were prosecutor's information. He now points out that it was not the intention of the People to file prosecutor's informations by filing the new accusatory instruments charging two separate counts of sexual abuse in the third degree. Nor were the said accusatory instruments labeled as prosecutor's information. Instead they were both entitled misdemeanor informations. Obviously, it is not the title of the accusatory but the form, content of the accusatory and its compliance with the applicable statutes that determines the type of accusatory instrument. As held in People v. Kelly, 68 Misc 3d 1204(A) 2020 Slip Op. 50859(U) [2020], *6

"... the Court of Appeals recognized that, 'Title [of an accusatory instrument] then cannot be dispositive when it is the legislature's intention that no single part of the form be dispositive. It would be illogical, then, to find that the title of the form governs over its substance (citations omitted).' People v. Fernandez, 20 NY3d 44, 50, 956 N.Y.S.2d 443,447 (2012) See also: People v. Ferro, 22 Misc 3d 7, 871 N.Y.S.2d 814 (App. Term 9th & 10th Jud. Dists. 2008)"

The prosecutor argues that the new accusatory instruments charging the defendant with two separate counts of sexual abuse in the third degree are superceding informations permitted by CPL § 100.50 (1), despite the fact that they were signed by him. CPL § 100.50 (1) states as follows:

" If at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. The first instrument is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second instrument."

In the instant case the new accusatory instruments charging the defendant with endangering the welfare of a child, in violation of P.L. § 260.10 (1), affirmed on December 22, 2022 by Investigator Sayeh Rivazfar, and now two counts of sexual abuse, 3rd degree, P.L. § 130.55, dated January 5, 2023, executed by Stephen Ryck, as an Assistant District Attorney, include a supporting deposition containing non-hearsay allegations executed the minor child alleging the incidents in question. As such they are informations as defined by CPL §§100.10. [*4](1), and are sufficient on their face in compliance with 100.40 (1).

Furthermore, note that

"CPL § 100.50(1) addresses the circumstance where a superseding information or prosecutor's information contains at least one of the offenses contained in the first accusatory instrument. CPL § 100.50(2) addresses the circumstance where the superseding prosecutor's information does not contain any of the offenses contained in the first accusatory instrument. Notably and significantly, both sections by their terms apply only to informations or superseding prosecutor's informations, and do not apply to misdemeanor complaints or simplified informations."[FN4] (People v. Lights, 63 Misc 3d 430,432, 63 NY S. 3d 829,830 [Rochester City Court 2019, Crrimi, J]).

In this case CPL § 100.50 (1) is more relevant subsection as the informations "contains at least one of the offenses contained in the first accusatory instrument".[FN5] The Court of Appeals has held that "The Legislature's purpose in enacting CPL 100.50(1) buttresses our conclusion that it is permissible to file a new information charging new offenses and alleging additional facts. Subdivision (1) was added 'to establish authority for superseding informations and prosecutor's informations ....'" (People v. Thomas, 4 NY3d 143,147, 791 N.Y.S.2d 68 [2005[) Certainly the superceding accusatory instruments resulted in the addition of an additional count of sexual abuse in the third degree and the addition of a supporting deposition by the minor child which alleged additional facts.The Court of Appeals went on to say

"... that the Legislature intended that prosecutors should also be able to issue an information that charges new, joinable crimes premised on factual allegations that were not included in the original information. Indeed, article 170 of the Criminal Procedure Law does not specify that a subsequent information is defective if it charges new crimes or alleges new facts (see CPL 170.30, 170.35)."[FN6]

As previously indicated, defense counsel argues that the new accusatory instruments are prosecutor's informations and thus should be dismissed pursuant to CPL § 170.35 (3) (b), which states "A prosecutor's information is also defective when: It is filed by the district attorney at his own instance, pursuant to subdivision two of section 100.50 [emphasis added], and the factual allegations of the original information underlying it and any supporting depositions are not legally sufficient to support the charge in the prosecutor's information." However, as stated above "CPL § 100.50(2) addresses the circumstance where the superseding prosecutor's information does not contain any of the offenses contained in the first accusatory instrument."[FN7] That is not the case herein. The superceding accusatory instruments herein are actually informations, that did in fact contain some of the offenses in the original accusatory instruments, [*5]which would mean the CPL 100.50 (1) would be applicable.[FN8] In addition said superceding informations are in compliance with said statute.

Conclusion

The motion to dismiss the new accusatory instruments charging the defendant with two separate counts of sexual abuse in the third degree as being prosecutor's informations, which are in violation of CPL § 100.50 (2) is hereby denied.The said new accusatory instruments are superceding informations in compliance with CPL §§ 100.50 (1), 100.10 (1) and 100.40 (1). The remaining arguments raised by the defense relative the three superceding informations are without merit. This constitutes the decision and order of this Court.

Dated: May 8, 2023
Webster, New York
Hon. Thomas J. DiSalvo
Webster Town Justice Footnotes

Footnote 1:The date of the alleged incident in the superceding accusatory instruments conform to the date of the incident alleged in the supporting depositions of the complainant, a minor, and her mother, to wit, August 10, 2021. The date of the said supporting deposition was December 22, 2022.

Footnote 2:(CPL § 100.10 [3])

Footnote 3:That supporting deposition was the one provided by the minor child on December 22, 2022. No supporting deposition by that individual accompanied the original misdemeanor informations.

Footnote 4:(See also People v. Woods, 64 Misc 3d 971,975, 109 N.Y.S.3d 569,573 [Webster Just Ct 2019])

Footnote 5:(CPL § 100.50 [1])

Footnote 6:(Id. at 148)

Footnote 7: (People v. Lights at 432, 830)

Footnote 8:(Id.)