People v. Machado

John T. Yu, Bronx, for defendant. Robert T. Johnson, District Attorney of Bronx County (Jennifer Calhoun of counsel), for plaintiff.

OPINION OF THE COURT

JOSEPH J. DAWSON, J. CPL 140.45 requires a local criminal court to dismiss an accusatory instrument when it is facially insufficient (see, CPL 100.40) and when "the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face." (See, CPL 140.45.) Beyond restricting this dismissal power to cases involving warrantless arrests (see, CPL 140.45, citing CPL 140.20, 140.25, 140.40), the statute is silent regarding the procedural rules that govern a court's power to inspect an accusatory instrument for facial sufficiency. Specifically, the provision does not state whether, and to what extent, the People are entitled to demand a written motion to dismiss and a reasonable opportunity to respond in writing before the court may exercise its power under CPL 140.45, and there are no reported cases that resolve this issue. In this case, the court has concluded that, regardless of whether any motion to dismiss has been made, a local criminal court is required to inspect an accusatory instrument for facial sufficiency during a defendant's arraignment following an arrest without a warrant. Moreover, because a local criminal court must inspect the instrument promptly after a warrantless arrest and exercise its dismissal power under CPL 140.45 in the event that the pleading is defective, the People are not entitled to demand motion papers or an opportunity to prepare a written response. They may present only such facts or evidence as may be available to them at the arraignment.

FACTUAL BACKGROUND

Defendants Carlos Machado and Manny Garcia were arrested without a warrant on July 21, 1999. Both defendants were charged in a misdemeanor complaint with two counts of criminal sale of marihuana in the fourth degree, and four counts of criminal possession of marihuana in the fifth degree. The complaint alleged that an undercover police officer approached defendant Machado and stated, "You got Nicks." According to the complaint, defendant Machado responded, "Na man, not here, it's hot * * * Go see Omar in the basketball court." At that point, the complaint continues, the undercover officer approached Garcia, who asked whether the officer was "looking for smoke." The undercover officer gave an affirmative response, and stated, "Let me get one." The officer handed Garcia $5 in prerecorded currency; Garcia walked to a garbage can, removed a "small ziplock bag containing a green, dried, leafy substance," and then gave the bag to the officer. The complaint alleges that, based upon his or her training and experience, the undercover officer believed that the bag contained marihuana. The complaint also alleges that both defendant Machado and Garcia were "in custody and control of eleven [more] bags containing a green, dried, leafy substance with a distinctive odor in that said bags were located on the ground next to * * * Garcia's feet." With respect to the nature of the substance, the complaint asserted, among other things, that a field test on 1 of the 11 bags yielded results consistent with the presence of marihuana. At the arraignment on this accusatory instrument, defendant Machado's counsel urged the court to dismiss the accusatory instrument on the ground that it was facially insufficient. The People responded by asserting that the relief demanded by defendant Machado is available only after a written motion to dismiss has been made. The court asked the People whether there was any available evidence tending to connect defendant Machado to codefendant Garcia or tending to show that codefendant Garcia could somehow be connected to "Omar" or "the basketball court." After being told that the People's file did not contain such information, the court stated that it would call the case again at a later point in the evening to give the People a chance to determine whether any additional evidence was available. When the case was recalled, Garcia entered a plea of guilty, and the People asserted that no further evidence was available regarding defendant Machado. The court thereupon dismissed the accusatory instrument against Machado pursuant to CPL 140.45, and stayed sealing to give the People an opportunity to move for reconsideration. Set forth below are the reasons for the court's decision.

DISCUSSION

The accusatory instrument in this case plainly provided probable cause to support the arrest of Garcia. With respect to defendant Machado, however, there was only one factual assertion concerning his conduct. Specifically, defendant Machado's response to the request for "nicks" arguably amounted to a statement that he did not have any marihuana, but that the officer might obtain the substance by seeing "Omar in the basketball court." Without some support for the proposition that Garcia was, in fact, known as "Omar," or that the sale occurred "in the basketball court," there was no factual basis additional facts or evidence as might have been available to them at the arraignment.^[3] [1] There is no analogous procedure for cases involving defendants who have been arrested on the authority of an arrest warrant. The distinction springs from the fact that a Judge may issue an arrest warrant in the first place only after passing upon the facial sufficiency of the underlying accusatory instrument. (See, CPL 120.20 [1].) [2] Proposed NY CPL 70.60 provided: "If an information or a felony complaint filed in a local criminal court pursuant to * * * section 70.50 [ultimately enacted as CPL 140.40] is not sufficient on its face, as prescribed in section 50.35 [ultimately enacted as CPL 100.40], and if the court is satisfied that an information or felony complaint sufficient on its face cannot be drawn and filed on the basis of the available facts or evidence, it must dismiss such instrument and discharge the defendant." The fact that this section did not mention misdemeanor complaints is of no significance, for this version of the proposed CPL did not even contemplate the use of such instruments to commence criminal actions; instead, the proposal employed the use of informations in all cases except those commenced by the filing of a felony complaint. (See, Proposed NY CPL 50.05, 50.10.) [3] This court's holding addresses only the power of a local criminal court to dismiss an accusatory instrument for facial insufficiency at the time of a defendant's arraignment following an arrest without a warrant, and should not be read to suggest that a Judge has power to dismiss an accusatory instrument without a prior written motion in any other situation or procedural context.