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Criminal Procedure Law § 30.30.

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2008 NY Slip Op 50318(U)
THE PEOPLE OF THE STATE OF NEW YORK,
v.
EUGENE FILIPPINO, Defendant.
40089M-07.
Supreme Court of the State of New York, Richmond County.
Decided February 22, 2008.
The DA in Richmond County is Daniel Donovan.
The ADA on the case is Kenneth Moore, Jr.
The attorney for the defendant is Zoie Mair, Battiste, Aronowsky & Suchow Inc.
DEBRA SILBER, J.

Defendant moves by notice of motion dated January 7, 2008 for an order pursuant to Criminal Procedure Law § 30.30 to dismiss the charge of Criminal Contempt in the 2nd Degree (Penal Law § 215.50(3)) on the grounds that the misdemeanor complaint was not timely converted to a misdemeanor information. The People submitted opposition to the motion to dismiss dated January 14, 2008, seeking denial of the Defendant’s motion, thereby permitting the case to proceed to trial. For the reasons set forth below, the Defendant’s motion to dismiss is denied.

STATEMENT OF FACTS
The Defendant’s motion to dismiss concerns a case pending before the Integrated Domestic Violence Court under Docket Number 40089M-07. In this matter, the Defendant is charged with one count of Criminal Contempt in the 2nd Degree in violation of Penal Law § 215.50(3). The misdemeanor complaint says:

“Deponent states she observed the defendant standing on the driveway at 75 Midland Avenue. Deponent further states that she did observe Patti Dawson seated in an automobile which was parked in said driveway. Deponent further states that on June 18, 2007, the Honorable Catherine DiDomenico did, in Richmond County Family Court, on Family Court docket number O-02610-07, order the defendant to stay away from the home of Patti Dawson located at 75 Midland Avenue and to stay away from Patti Dawson, said order was to remain in effect until July 16, 2007. Deponent further states

that defendant was aware of such order in that defendant was present in court at the time the order was issued, and defendant did state, in sum and substance, Yes, I know my wife has an order of protection’.”

The People argue that the deponent, Police Officer Danielle Giammarino, gave a full description of both the stay-away order of protection and her personal observation of the Defendant at the complaining witness’s residence. The People claim that the accusatory instrument was a misdemeanor information at arraignment in that it “established a prima facie case that the Defendant intentionally and knowingly violated a lawful mandate.” The Defendant argues that the case was not converted, since a certified copy of the Family Court order of protection was not filed with the Court. The defendant was arraigned on July 15, 2007. The Defendant claims that 156 days are chargeable to the People and since the case is a misdemeanor the People had 90 days to convert the accusatory instrument into an information and declare their readiness. As the prosecutor did not convert the accusatory instrument, the Defendant claims that the case should be dismissed. It is noted that the People declared their readiness for trial on October 23, 2007 in open Court. There were adjournments for discovery, suppression hearings, and transfer to the Integrated Domestic Violence Court, so not all the time between the arraignment and the prosecutor’s declaration of trial readiness is chargeable to the People. Defendant first notified the Court of his intent to move to dismiss on speedy trial grounds on December 18, 2007, and then filed this motion to dismiss on January 7, 2008. The motion is denied for two reasons which are each, on their own, sufficient, as will be explained herein.

The complaint in this matter is facially sufficient and did not require any additional documents to be deemed an information. Secondly, Defendant waived his right to move to dismiss based on allegations of hearsay because the motion was made more than 45 days after arraignment. A motion seeking dismissal on the grounds of hearsay contained in the complaint is not appropriately brought as a speedy trial motion under Criminal Procedure Law § 30.30.

CONCLUSIONS OF LAW

Where a defendant is charged with a misdemeanor punishable by more than three months in jail, the People must be ready for trial within ninety (90) days. (Criminal Procedure Law §30.30[1][b]). The People must communicate their trial readiness within the statutorily prescribed period. (People v. Kendzia, 64 NY2d 331, 337, Ct. App 1987) [People must announce ready in open court or serve and file a statement of readiness upon the court and defense counsel]. After a valid statement of readiness, the People may be charged with post-readiness delay, provided such delay is not excluded pursuant to Criminal Procedure Law §30.30(4) (People ex rel. Sykes v. Mitchell, 184 AD2d 466, 468 [1st Dept. 1992] [Discussing post-readiness delay]). Once the Defendant alleges that the People have exceeded their statutory speedy trial time, the People must demonstrate that the disputed adjournmentsare excludable. (People v. Berkowitz, 50 NY2d 333, 349 [Ct. App1980]; People v. Drummond, 215 AD2d 579, 580 [2nd Dept. 1995]). In the instant case, the Court marked the file at arraignment as adjourned for discovery by stipulation (“DBS”), implying that the Court agreed that no additional documents were necessary for conversion. Neither side has provided the Court with a transcript of the arraignment.

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Criminal Procedure Law § 100.40[1] says “an information, or a count thereof, is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in section 100.15 [Identification of court, charges, and other procedural requirements]; and (b) the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.” (Criminal Procedure Law § 100.40[1]).

The Court of Appeals has held that it is a “better practice” for the prosecutor to annex a certified copy of the order of protection to the accusatory instrument in criminal contempt cases, but has stated that a misdemeanor complaint may be deemed a misdemeanor information without a certified copy of the order of protection, depending on the facts of the case. (People v. Casey, 95 NY2d 354, 359-360 [Ct. App 2000]; People v. Moreira, 2001 NY Slip Op 40122U, 4-5 [Crim Ct., Queens County 2001]). The accusatory instrument should “give the defendant sufficient notice to prepare a defense, should be adequately detailed to prevent the defendant from being tried twice for the same offense, and should demonstrate firsthand knowledge that the order of protection was granted, was in effect, and was violated by the defendant.” (People v. Casey, 95 NY2d at 360; People v. Peluso, 192 Misc 2d 33, 37 [Crim Ct., Kings County 2002]).

Penal Law § 215.50[3] states, in pertinent part, “a person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: intentional disobedience or resistance to the lawful process or other mandate of a court . . .” (Penal Law § 215.50[3]).
Here, the facts alleged in the accusatory instrument are sufficient to give the Defendant notice to prepare a defense, are adequately detailed to prevent the Defendant from being tried twice for the same offense, and demonstrate firsthand knowledge on Defendant’s part that the order was granted and was in effect at the time it was allegedly violated. The element that the Defendant knew of the existence of a valid order of protection is established because the complaint recites the statement on the temporary order of protection that the Defendant was present in Richmond County Family Court (DiDomenico, J.) when the order was issued, and received a copy of the order of protection in Court. In addition, the officer alleges that the Defendant stated to her “Yes, I know my wife has an order of protection.” The police officer that is the deponent merely needs to look at the order of protection to see that it says “both parties present in Court.” While it can be argued that the police officer’s reliance on the Family Court’s statement might be considered reliance on hearsay, whether the Defendant was or was not in fact in Court would be a defense for him to prove at trial.

The Court of Appeals has recently held that “as a facially valid judicial mandate, the order of protection was entitled to the presumption of regularity for purposes of fulfilling the pleading requirements.” (People v. Konieczny, 2 NY3d 569, 577 [Ct. App 2004]) Defendant does not challenge the validity or existence of the order of protection, nor does he deny that he was present in Family Court when it was issued. Counsel’s claim that it is necessary to file a certified copy of the order of protection to convert the misdemeanor complaint into a misdemeanor information is not accurate. There is no such requirement, although it is the “better practice” as described in Casey and Konieczny, supra.

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Defendant’s failure to object to any alleged hearsay within 45 days resulted in a waiver of any objection to hearsay, as discussed further herein. It is not an appropriate attack on the facial sufficiency of the misdemeanor information. Indeed, the police officer not only acknowledges that she saw the Defendant in the complaining witness’s driveway while the complaining witness was in the car (and had presumably called 911 while locked in her car) but she also states that she read the order of protection. Finally, the deponent states that Defendant admitted to her that he knew about the order of protection, although that statement is not necessary to the Court’s determination that the complaint is facially sufficient and did not require anything additional to be deemed a misdemeanor information.

In conclusion, the Court finds that although the People did not annex a certified copy of the Family Court order of protection at arraignment, the misdemeanor complaint was converted into a misdemeanor information at arraignment because the police officer (1) personally saw the Defendant at the complaining witness’s home, and (2) personally reviewed the order of protection prior to swearing to the complaint and both of these pieces of information are recited in the complaint.

While Defendant’s motion is denied because the Court finds the complaint is facially sufficient without a certified copy of the order of protection, it should be noted that the third prong of Criminal Procedure Law § 100.40 contained in § 100.40(1)(c), that the allegations must be “non-hearsay,” is waivable. Therefore, failure to object in a timely fashion to a complaint or supporting deposition containing hearsay or to the provision of the wrong order of protection has been deemed a waiver. (People v. Casey, supra; People v. McConnell, 11 Misc 3d 57, 60 [2nd Dept. 2006]; People v. McGowan, 2002 NY SlipOp 40330(U), at 3 [Crim Ct., Richmond County 2002]; People v. Gomez, 9 Misc 3d 1117(A), at 4 [Crim Ct., New York County 2005]). Criminal Procedure Law § 255.20 provides that “all pre-trial motions shall be served or filed within forty-five days after arraignment and before the commencement of trial.” As Defendant did not file a motion to dismiss alleging a defect in the complaint within forty-five days, which would have allowed any defect to be rectified before the (90 day) speedy trial time was reached, a defect is deemed waived if not jurisdictional. As the requirement that the complaint contain non-hearsay allegations is waivable, it cannot be the basis of a motion to dismiss on speedy trial grounds. (People v. Dean, 74 NY2d 643, 644 [Ct. App 1989]).

The Defendant’s motion to dismiss the charge of Criminal Contempt in the 2nd Degree under Docket Number 40089M-07 is denied and this case will proceed to trial.
This constitutes the Decision and Order of this Court.

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