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The People of the State of New York, Appellant v. James Kelly

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 24, 2012

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, --
v.
JAMES KELLY, RESPONDENT.

Appeal from an order of the Justice Court of the Town of Chester, Orange County (Joseph J. Ranni, J.), dated December 7, 2010.

People v Kelly (James)

Decided on December 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: LaCAVA, J.P., IANNACCI and LaSALLE, JJ

The order, insofar as appealed from, granted the branches of defendant's motion seeking to dismiss the accusatory instrument.

ORDERED that the order, insofar as appealed from, is reversed, on the law, the branches of defendant's motion seeking to dismiss the accusatory instrument are denied, the accusatory instrument and the verdict are reinstated, and the matter is remitted to the Justice Court for sentencing.

By a misdemeanor complaint, defendant was charged with criminal contempt in the second degree (Penal Law § 210.45), in that he allegedly had intentionally failed to obey a witness subpoena that had been issued by the District Attorney, which had required him to appear in court on May 14, 2009. Annexed to the misdemeanor complaint were a supporting deposition and a copy of the subpoena. At a jury trial, following the close of the People's case, defendant moved for a trial order of dismissal, and the Justice Court reserved decision. Defendant then presented his case, after which he again moved for a trial order of dismissal. The court again reserved decision and instructed the parties to "submit briefs." Thereafter, the jury found defendant guilty of criminal contempt in the second degree. In a subsequent written motion, defendant moved (1) to dismiss the accusatory instrument as jurisdictionally defective, (2) to dismiss the accusatory instrument pursuant to CPL 30.30, (3) for a trial order of dismissal or, in the alternative, to set aside the verdict, pursuant to CPL 330.30, on the ground that the People had failed to establish their prima facie case beyond a reasonable doubt, (4) to set aside the verdict, pursuant to CPL 330.30, on the ground that prosecutorial misconduct required a mistrial, and (5) to set aside the verdict, pursuant to CPL 330.30, on the ground that the jury instructions were improper. By order dated December 7, 2010, the Justice Court granted the first three branches of defendant's motion, denied the last two branches of defendant's motion and dismissed the accusatory instrument. The People appeal from so much of the order as granted the branches of defendant's motion seeking to dismiss the accusatory instrument. We reverse.

We find that the misdemeanor complaint, read together with the supporting deposition, alleges facts of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). The deposition was sufficient to convert the complaint to an information notwithstanding the superfluous hearsay statements contained therein (CPL 170.65 [1]; People v Fernandez, ___ NY3d ___, 2012 NY Slip Op 07145 [2012]). In any event, defendant waived any objection to hearsay by failing to timely raise this issue by motion in the Justice Court (see People v Casey, 95 NY2d 354 [2000]). The factual allegations contained in these documents set forth that defendant failed to appear in court on May 14, 2009, after having been served with a subpoena, and an inference can "rationally [be] drawn" (People v Bello, 92 NY2d 523, 526 [1998]; see People v Dreyden, 28 Misc 3d 5, 7-8 [App Term, 2d, 11th & 13th Jud Dists 2010], lv denied 15 NY3d 773 [2010]) that defendant intentionally failed to appear in court.

The accusatory instrument provided defendant with sufficient notice to prepare a defense and was sufficiently detailed to prevent him from being tried twice for the same offense (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360). We note that speedy trial motions must be made prior to the commencement of trial or entry of a plea of guilty (see CPL 170.30 [2]) and, therefore, the Justice Court improperly granted the second branch of defendant's motion, which sought dismissal of the accusatory instrument for the first time posttrial.

Although the Justice Court reserved decision on defendant's motion for a trial order of dismissal at the close of the People's case, once defendant chose not to rest, but to present evidence in his defense, defendant waived his right to have the court consider the motion solely on the basis of the People's evidence. Thus, when defendant renewed his motion at the conclusion of the trial, the court, in deciding the motion, was required to determine whether the totality of the evidence that had been presented at trial - - including the evidence that had been adduced by defendant - - was sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Payne, 3 NY3d 266, 273 [2004]; People v Silberzweig, 58 AD3d 762 [2009], lv denied 12 NY3d 920 [2009]; cf. CPL 290.10 [1]). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the totality of the evidence presented at trial - - including defendant's testimony that he had received the subpoena which directed him to appear in court on May 14, 2009 at 9:30 A.M. and, on that date, he had left the courthouse at about 9:27 A.M. and had gone home -- was legally sufficient to establish defendant's guilt beyond a reasonable doubt of criminal contempt in the second degree. Defendant's remaining arguments either lack merit or are unpreserved for appellate review.

Accordingly, the order, insofar as appealed from, is reversed, the branches of defendant's motion seeking to dismiss the accusatory instrument are denied, the accusatory instrument and the verdict are reinstated, and the matter is remitted to the Justice Court for sentencing.

LaCava, J.P., Iannacci and LaSalle, JJ., concur. Decision Date: December 24, 2012

20121224

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