In this Criminal case, the defendant was arrested in September 1978 and charged in one accusatory instrument, a felony complaint, with two crimes, i. e., Violation of Sections 265.02 (a felony) and 240.50 (a misdemeanor).
A Queens County Criminal attorney said that a preliminary hearing was held by this Court in November 1978. The People offered the testimony of an officer and a forensic report prepared by the New York City Police Department attesting to the operability of the weapon.
A Queens County Criminal lawyer said that the defendant was standing on 107th Avenue and New York Boulevard in Queens County at about 6:30 A.M. on September 16, 1978, when he flagged down a police patrol car. A distance away from the defendant were a group of five males. The defendant informed the police officers that he was an “undercover man” in the District Attorney’s office and that the group of males had just robbed him and taken his gun. At the time of this conversation, the defendant was holding a black leather holster in his hand. The police arrested the five males at the scene and recovered a gun on the sidewalk from the area in which they were standing. The defendant identified the gun as his; it was a twin barrelled Derringer with two live rounds in its chambers.
After arriving at the Police station and upon investigation of the occurrence, it was determined that the defendant did not work for the District Attorney’s office and that he had no lawful authority to possess a gun. The defendant was placed under arrest for illegal possession of said gun, and for the misdemeanor of falsely reporting an incident. A search revealed five live rounds of ammunition in the defendant’s pocket.
The five males that were arrested at that time were released when the defendant admitted that they had not, in fact, robbed him. This reporting of a non-existent robbery to the police gave rise to the charge of falsely reporting an incident.
A ballistics test determined that the gun was operable, but that the five bullets found upon the defendant did not fit that gun.
In order to justify the granting of a preliminary hearing on the misdemeanor charge, it must be determined that the repeal of 170.75 CPL rescinding the right of a defendant to a preliminary hearing in a misdemeanor case is inapplicable in any case where a defendant is properly charged in a felony complaint with a misdemeanor and a felony.
A review of statutes governing preparation of accusatory instruments would be helpful in this regard.
A felony complaint must charge a defendant with the commission of at least one felony. A felony complaint may charge two or more offenses subject to the rules of joinder applicable to indictments. An offense, Inter alia, embraces misdemeanors and felonies. An indictment must charge at least one crime and may charge in separate counts one or more offenses, which are joinable when based upon the same criminal transaction. A criminal transaction must establish at least one offense and may charge two or more counts related closely in point of time so as to constitute a single criminal incident.
Clearly, a felony and misdemeanor may be properly joined in one accusatory instrument when part of a single criminal incident.
Section 170.75 of the CPL provided a defendant “who has been arraigned in the New York City criminal court upon an information which charges a Misdemeanor may request a hearing to determine whether there is reasonable cause to believe that he committed such misdemeanor”. It is patently obvious that the repeal of 170.75 CPL only effected the defendant who was initially charged solely with a misdemeanor in an accusatory instrument and not one who was charged with a felony and misdemeanor as part of the same transaction.
There is no indication that the Legislature intended to bifurcate the hearing process where a defendant is charged in the same accusatory instrument with a felony and misdemeanor.
Accordingly, the Court finds that the misdemeanor charged was part of the same transaction in which the felony charge arose, thus becoming an intrinsic part thereof which concomitantly empowers this Court to decide whether there is reasonable cause to hold the defendant on either the felony or misdemeanor charges in this hearing.
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