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People v. Gordon

March 27, 2009

THE PEOPLE OF THE STATE OF NEW YORK
v.
ALECIA GORDON, DEFENDANT.



The opinion of the court was delivered by: Ruth E. Smith, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Defendant moves to dismiss the accusatory instrument filed against her in the above entitled action pursuant to CPL 30.30(1)(a). For the reasons that follow, defendant's motion is granted.

Procedural History

Defendant was arraigned November 13, 2007 on a Criminal Court Complaint charging her with Assault in the Second Degree (in violation of PL § 120.05[3]), a class D felony; and two class A misdemeanors, Obstructing Governmental Administration in the Second Degree (PL § 195.05); and Resisting Arrest (PL § 205.30). The case was adjourned to December 12 for Grand Jury action.

On December 12, 2007, as the Grand Jury had taken no action, the case was adjourned to January 16, 2008, for reduction.

On January 16, 2008, the People stated that the case was "on for reduction" and served and filed what purported to be a "superseding information and two supporting depositions" (Transcript at 2). The People failed to proffer any reasons for the reduction, nor did they explain the resulting reduced charge (id.). Furthermore, the minutes of the proceedings reveal that defendant was never arraigned on this purported information (id.).

Rather than filing a superseding information, however, the People instead filed a copy of the previously filed Criminal Court Complaint, dated November 12, 2007, charging the same violations of law, including the felony assault. The only difference from the Complaint on which defendant had previously been arraigned, was that the face of the new document was marked "superseded complaint".

Furthermore, the two supporting depositions served and filed in conjunction with the purported superseding information both signed and dated November 16, 2007 both make reference to an accusatory instrument also dated November 16, 2007. Each supporting deposition attests that the named affiant had "read the accusatory instrument dated November, 16, 2007, in this action" and that "[t]he facts in that instrument stated to be on information furnished by me are true to my personal knowledge" (see Nov. 16, 2007 corroborating affidavits of Police Officers Eric Ruiz and Ewa Lapinska). Despite these irregularities in the reduction the matter was adjourned to March 11, 2008, for discovery by stipulation ("DBS").

On March 11, 2008, the People served and filed DBS. Defendant was absent due to having recently given birth. The case was adjourned to April 10th for hearings and trial.

On April 10, 2008, both the People and defendant announced their readiness for trial, and the case was adjourned to April 18th.

On April 18, 2008, the People answered ready, but defendant sought additional discovery, and the case was adjourned to April 24th.

On April 24, 2008, the People said they were not ready due to the unavailability of the arresting officer and requested two weeks, and the case was adjourned to May 19th.

On May 19, 2008, the People answered ready for trial and served additional DBS on defendant. Defendant requested an adjournment to ...


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