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CPL § 180.50(3)(d)

The Defendant was originally charged, by Felony Complaint, on November 23, 2010 with Attempted Grand larceny in the Third Degree, in violation of Penal Law §§ 110.00/155.35.On June 9, 2011this charge was reduced, pursuant to CPL § 180.50, to Attempted Grand larceny in the Fourth Degree, in violation of Penal Law §§ 110.00/155.30(1). This reduction, and the conversion of the Felony Complaint to a District Court Information, was accomplished by the appropriate notations having been made on the Felony Complaint, in accordance with CPL § 180.50(3)(a)(iii) and by the annexing of a short form order directing such reduction to the Felony Complaint.

The Criminal Defendant now moves to dismiss the District Court Information, as being facially insufficient, pursuant to CPL § 170.30(1)(a). The Defendant argues that the People’s theory of the case is one of larceny by extortion and that “the information herein does not advise or place defendant on notice that the theory of prosecution is based upon larceny by extortion.”

In opposition the People argue that the facial sufficiency of the District Court Information was already determined at the time of the reduction of the Felony Complaint, pursuant to CPL § 180.50(3)(a)(iii), and that this court is now precluded from hearing this issue. Alternatively the People allege that the Information is facially sufficient.

The People’s position, that the reduction of a felony charge to a misdemeanor pursuant to CPL § 180.50(3)(a)(iii) results in a binding determination as to the facial sufficiency of the newly created District Court Information, effectively converts the reduction procedure to a defendant’s motion to dismiss pursuant to CPL § 170.30(1)(a). The court finds that such an application of CPL § 180.50(3)(a)(iii) is not only contrary to the intended purpose of that section, but eviscerates the application of CPL § 170.30(1)(a) to any felony offense reduced pursuant to CPL § 180.50(3)(a)(iii) and potentially denies a defendant the opportunity to be heard concerning the facial sufficiency of the accusatory instrument.

Clearly, “[t]he drafters of the Criminal Procedure Law provided for the reduction of Felony Complaints in order to expedite the resolution of less serious cases in local criminal courts, and in order that superior courts not be cluttered up with cases that do not truly merit prosecutions as felonies.” It is not the statute’s purpose to be the mechanism by which an ultimate determination as to the facial sufficiency, jurisdictional or otherwise, of a District Court Information is to be determined.

The expedited mechanism spelled out in CPL § 180.50 for the reduction of felonies to misdemeanors provides, in subparagraph 1, that the court may make inquiry, with the People’s consent, to determine whether there is reason to believe an offense other than a felony was committed, as a predicate to such reduction.

To regard a unilateral determination about how the reduction should be effectuated as a definitive ruling that, e.g, a felony complaint —the function of which is to demonstrate the existence of reasonable cause to believe the defendant committed a felony has been transformed into a facially sufficient information the purpose of which is to demonstrate the existence of a prima facie case — simply because of court notations and, perhaps, annexation of a supporting deposition, is untenable and impractical.”

The Judge further noted that the “law of the case” doctrine could have no application in such a situation, where one party, the criminal defendant, had no opportunity to be heard on the issue which the People wish to give preclusive effect.

Further belying the People’s argument are the provisions of CPL § 180.50(3)(d), which, inter alia, require the court to “arraign the defendant on the new accusatory instrument ” and the provisions of CPL § 170.30(1) which explicitly set forth that it is this arraignment which serves as the trigger for a defendant’s motion to dismiss for facial insufficiency pursuant to subparagraph (a) and CPL § 170.35(1).

In harmony with these provisions, and with the court’s opinion that a reduction pursuant to CPL § 180.50(3)(a)(iii) cannot act a substitute for a defendant’s motion to dismiss pursuant to CPL §§ 170.30(1)(a) and 170.35(1), are the provisions of CPL § 170.45, which provide, inter alia, that the “procedural rules prescribed in section 210.45 with regard to the making of a motion to dismiss an indictment are also applicable to a motion to dismiss an information.” and the provisions of CPL § 210.45(1), which mandate, among other things, that a motion to dismiss “must be made in writing.”

Following the People’s argument, Sections 170.30, 170.35, 170.45 and 210.45, among others, would simply be written out of the Criminal Procedure Law whenever a felony offense is reduced pursuant to CPL § 180.50(3)(a)(iii). Moreover, the People’s position would preclude a defendant from ever challenging the facial sufficiency, jurisdictional or otherwise, of the converted District Court Information, without ever having been provided the opportunity to be heard. For the reasons set forth above, the court does not believe that was the intended purpose of CPL § 180.50 and refuses to adopt the People’s argument.

The District Court Information will be found facially sufficient where it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3) based upon either the complainant’s personal knowledge or upon information and belief. The factual part, taken together with any supporting depositions, must “provide reasonable cause to believe that the defendant committed the offense,”

The Defendant is correct in asserting that “[w]here [as here] the theory of prosecution is larceny by extortion, proof that the defendant compelled or induced another person to part with property by instilling fear of future injury is necessary.

Viewing these allegations in a light most favorable to the People, , without giving them an overly restrictive or technical reading, , the court finds that they establish, through first hand non-hearsay allegations, that the Defendant attempted to compel the victim to provide him with property having a value in excess of one thousand ($1,000.00) dollars, to which the Defendant was not otherwise entitled, by instilling in the victim fear that the Defendant would “expose a secret or publicize an asserted fact, whether true or false, tending to subject to hatred, contempt or ridicule” Penal Law § 155.05(2)(e)(v) and/or by “performing any other act which would not in itself materially benefit the [Defendant] but which is calculated to harm the victim materially with respect to his business, calling, career, financial condition, reputation or personal relationships.”

Contrary to the Defendant’s argument, while it may have been a better practice to annex the Defendant’s alleged typewritten note to the Information, the failure to have done so is not fatal to the facial sufficiency of the accusatory instrument. The contents of the note, as related by the victim in his supporting deposition, are not offered for the truth of those statement, the very definition of hearsay; rather they are set forth as a demonstration that such statements, true or not, where made by the Defendant to the victim, as part of the criminal res gestae of the alleged extortion.

Based upon all of the foregoing, the court finds that the Information serves its intended purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense.

Accordingly, the Defendant’s motion to dismiss is denied.

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