Appeal from an order of the Criminal Court of the City of New York, Kings County (Miriam Cyrulnik, J.), dated May 29, 2009.
People v. Marcus (Ramell)
Decided on December 15, 2010
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ
The order, insofar as appealed from as limited by the brief, upon reargument, adhered to so much of a prior decision dated January 22, 2009 as granted the branch of defendant's motion seeking to dismiss the count of the information charging defendant with criminal contempt in the second degree.
ORDERED that the order, insofar as appealed from, is reversed, on the law, and the matter is remitted to the Criminal Court for a determination de novo, upon reargument, of the branch of defendant's motion seeking to dismiss the count of the information charging defendant with criminal contempt in the second degree, and for all further proceedings.
On May 18, 2008, the People filed an accusatory instrument charging defendant with two counts of assault in the third degree (Penal Law § 120.00 ), two counts of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ), two counts of menacing in the third degree (Penal Law § 120.15) and two counts of harassment in the second degree (Penal Law § 240.26 ). On July 3, 2008, the People served and filed a superseding information as well as a statement of readiness. In the superseding information, defendant was charged with one count of each of the aforementioned offenses as well as the additional offense of criminal contempt in the second degree (Penal Law § 215.50 ). Defendant subsequently moved to dismiss the superseding information pursuant to CPL 30.30 (1) (b) on the ground that he had been denied his statutory right to a speedy trial.
The Criminal Court granted defendant's motion, using the date of the filing of the original information as the date on which the speedy trial clock had begun to run with respect to all of the counts, including the charge of criminal contempt. The People moved for leave to reargue with respect to the dismissal of the criminal contempt charge, contending, in effect, that the speedy trial clock had not commenced running with respect to the criminal contempt charge until the superseding information charging that offense was filed, and that the contempt charge, in particular, should therefore not have been dismissed. Defendant's attorney filed an affirmation opposing the People's motion. In his affirmation, he argued, in part, that the Criminal Court should adhere to its dismissal of the criminal contempt charge because that charge had arisen out of a separate criminal transaction from the other charges, and, consequently, the joinder of that charge with the other charges was improper. Implicitly granting leave to reargue (see Matter of Aetna Cas. & Sur. Co. v Pellegrino, 203 AD2d 457 ), the Criminal Court adhered to its dismissal of the criminal contempt charge, but did so on the ground that the criminal contempt charge had been improperly joined with the original offenses.
With respect to the joinder issue, at the point when defendant first raised this issue, the Criminal Court had dismissed the original domestic violence charges on speedy trial grounds. The People had not moved for leave to reargue the speedy trial dismissal with respect to those charges. At that juncture, error, if any, in the joinder had already been cured (see generally People v Torres, 249 AD2d 19, 20  ["(w)e reject defendant's claim that he was entitled to dismissal of the indictment, rather than severance, on the ground of misjoinder of defendants(; b)y granting severance, the court cured any misjoinder of defendants, and any prejudice to defendant was obviated"]). In view of the foregoing, we do not reach the issue whether, prior to the cure, the contempt charge had been properly joined with the other charges in the superseding information.
The Criminal Court reasoned that any issue as to the propriety of the original speedy trial dismissal of the contempt charge was moot because the court was dismissing the contempt charge as improperly included in the superseding information. Since the Criminal Court erred in dismissing the criminal contempt charge as improperly included in the superseding information, we remit the matter to the Criminal Court for it to decide de novo (upon the reargument it implicitly granted) the merits of the speedy trial motion with respect to the contempt charge.
Golia, J.P., and Steinhardt, J., concur.
Pesce, J., taking no part.
Decision Date: December ...