People v. Pestana

BARBARA JAFFE, J. In the course of denying defendant's speedy trial motion and rejecting his contention that a criminal court information alleging the possession of a gravity knife must set forth an evidentiary basis for the deponent police officer's conclusion that a weapon constitutes a gravity knife, this court agreed with a decision of the Appellate Term, Second Department, but did not deem itself bound by it. On March 26, 2003, in an oral ruling from the bench, the court denied defendant's motion for the following reasons.

III. Conclusions of Law

1. Is this court bound by William, a decision rendered by the Appellate Term, Second Department? In its decision denying defendant's motion to dismiss, this court held that the information alleging that defendant possessed a "gravity knife (which opens and locks open when flipped)" was facially sufficient.^[*] Absent a decision on point of the Court of Appeals, the Appellate Division, First Department, or the Appellate Term, First Department (NY Const, art VI, § 8 [d] [according appellate jurisdiction over local criminal court to Appellate Term]; CPL 450.60 [4] [same]), this court considered whether it is bound by a decision rendered by the Appellate Term, Second Department, which affirmed the denial of a motion to dismiss an information containing the sole allegation that the defendant possessed a gravity knife. In considering the binding effect of such a decision, it was necessary to examine the doctrine of stare decisis. The provision that embodies the common-law rule of stare decisis as applicable to the courts of New York State provides as follows: "The binding force of a judicial construction of a statute depends upon the court by which it was rendered and the rank of the tribunal in the judicial hierarchy. Thus the decisions of the Court of Appeals are binding upon the Appellate Division; those of the Appellate Division on the Supreme Court; and so on down from the superior to the inferior judicatories." (McKinney's Cons Laws of NY, Book 1, Statutes § 72 [b], Comment.) Further, "a decision of an appellate term of one judicial department is not binding on the supreme court in another department which has decided to the contrary." (Id.) In Mountain View Coach Lines v Storms (102 AD2d 663, 664 [2d Dept 1984]), the Appellate Division, Second Department, interpreted the rule of stare decisis as requiring that trial courts within the Second Department follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division, Second Department, misidentifying the object as a gravity knife is in the nature of a latent defect which, like matters of credibility, must await trial. (See Matter of Edward B., 80 NY2d 458, 461, 463 [1992].) Consequently, the information was facially sufficient when the court rendered its decision despite the subsequent discovery that the object was not a gravity knife. Nonetheless, this court agrees with defendant's assertion that the mere design of a gravity knife does not ensure its function as a weapon, and recognizes that there are pitfalls to conclusory pleadings where, as here, a police officer errs in identifying an object as a particular weapon. That error, had it not been for its revelation by the assistant district attorney, could have resulted in the continued and wrongful prosecution of defendant for that offense. Still, it is the purpose of a trial to reveal errors such as the one made in this case, where defendant advances no claim of police or prosecutorial misconduct. (Compare People v Flores, 189 Misc 2d 665, 667 [Crim Ct, Queens County 2001] [complaining witness' admission at trial that she was unable to read complaint or her own supporting deposition does not annul information absent prosecutorial bad faith], with People v Kenrick, 162 Misc 2d 75, 78 [Crim Ct, NY County 1994] [where differing signatures on undercover officer's supporting depositions suggested police misconduct, court held hearing].) For all of these reasons, even if not bound by William, this court agrees with it. To the extent that defendant has asked the court to reconsider its earlier decision denying his motion to dismiss for facial insufficiency, that application is denied.

With regard to the remainder of defendant's motion, the court makes the following factual findings and conclusions of law: June 20, 2002 to July 16, 2002 (excluded): On June 20, defendant was arraigned on the misdemeanor complaint which was deemed an information. The case was adjourned to July 16 for defendant to retain private counsel. Defendant correctly concedes that the People should not be charged with this period of delay. (CPL 30.30 [4] [f].) July 16, 2002 to September 17, 2002 (excluded): On July 16, the Legal Aid Society was appointed to represent defendant. The case was adjourned for motion practice. Defendant's contention that the weapon count was facially insufficient is rejected. (See III.A, supra.) However, even if the § 30.30 (4) (g), as a police officer witness was unavailable due to medical reasons. Additionally, even if the adjournment was not due to exceptional circumstances within the meaning of the statute, the People observe that they would have only been chargeable with 20 days, from December 11 to December 31, when they filed and served the certificate of readiness. Although the People's conclusory assertion that the officer was medically unavailable is ordinarily insufficient to justify excluding this period without at least documentary verification (see People v Marshall, 91 AD2d 900, 901 [1st Dept 1983] [as long as material witness' unavailability for medical reasons can be verified, that period of time should be excludable as an exceptional circumstance]), defendant declined to object to the calendar court's determination that the delay would be excluded due to exceptional circumstances. Consequently, the delay is excluded. (CPL 30.30 [4] [g]; see People v Robinson, 171 AD2d 475 [1st Dept 1991], lv denied 78 NY2d 973 [1991] [hearing court erroneously ignored calendar judges' rulings on which People were entitled to rely]; People v Wilson, 119 AD2d 843 [2d Dept 1986] [hearing court erroneously reconsidered decision of judge who excluded adjournment as People entitled to rely on judge's representation that time would be excluded; as defendant failed to object to prior ruling, Appellate Division reinstated indictment]; cf. People v Berkowitz, 50 NY2d 333, 349 [1980] [calendar notations entered by court officer presumably at direction of presiding judge do not comprise binding determination as to whether delay to be excluded].) On January 29, 2003, the People answered ready and defense counsel requested an adjournment to file the instant motion. For all of these reasons, only eight days of includable time have elapsed since the commencement of the instant case, well within the statutory limit of 90 days. (CPL 30.30 [1] [b].)

Accordingly, defendant's motion to dismiss is denied. (CPL 170.45, 210.45 [5] [c].) [*] Here, the deponent officer's addition of the parenthetical comment "which opens and locks open when flipped" falls short of establishing that he tested the knife. As both parties erroneously contend that another judge denied the motion, this court need not address defendant's argument concerning the binding impact of a ruling rendered in the course of a single case by a different judge.