Criminal Court of the City of New York, Bronx County
October 9, 2013
The People of the State of New York,
Yasin Saleh, Defendant.
For the People, Robert T. Johnson, District Attorney, Bronx County, by K. Vance Hynes, Esq., Assistant District Attorney.
For the Defendant, Mark Sedlander, Esq., Bronx Defenders.
JOHN H. WILSON, J.
Defendant is charged with one count of Loitering for the Purpose of Engaging in a Prostitution Offense (PL Sec.240.37), a violation. Defendant was also charged with one count of Attempted Patronizing a Prostitute in the Third Degree (PL Sec. 110/230.04), a Class B misdemeanor, however, by this Court's decision of July 15, 2013, that charge was dismissed. See, People v. Saleh, 40 Misc.3d 1211(A), 2013 WL 3586689 (Crim Ct, Bx Cty, 2013).
By motion dated August 4, 2013, Defendant seeks dismissal of the remaining count of the docket, asserting that the charge is not facially sufficient. For their part, by motion dated August 14, 2013, the People seek reargument of this Court's July 15, 2013 order.
The Court has reviewed the Court file, Defendant's motion, the People's Response dated August 15, 2013, the People's motion, and the Defendant's Response dated September 12, 2013.
For the reasons stated below, the People's motion to reargue is denied. The charge of Attempted Patronizing a Prostitute in the Third Degree was properly dismissed as a nonexistent crime, and there is no authority for restoration of the original misdemeanor charge of Patronizing a Prostitute in the Third Degree.
Further, Defendant's motion to dismiss the charge of Loitering for the Purpose of Engaging in a Prostitution Offense is granted.
Pursuant to the Criminal Court complaint, on or about January 15, 2012 at approximately 12:05 AM, at the intersection of Southern Boulevard and East 172nd Street, Bronx, New York, the Defendant is alleged to have approached a police officer and asked that officer "to engage in sexual conduct to wit oral sex in exchange for giving (the officer) $15.00 U.S. currency." See, Criminal Court complaint dated January 15, 2012. The Defendant is alleged to have stated to the officer "I want head. I got $15.00." See, Criminal Court complaint dated January 15, 2012.
Defendant was initially charged with both Patronizing a Prostitute in the Third Degree (PL Sec. 230.04), a Class A misdemeanor, and Loitering for the Purpose of Engaging in a Prostitution Offense (PL Sec.240.37), a violation, however, on December 20, 2012, the People reduced the charge of Patronizing a Prostitute in the Third Degree to the Attempt.
(A) People's Motion to Reargue.
In this Court's decision of July 15, 2013, we stated that "the People reduced the charge of Patronizing a Prostitute in the Third Degree to the attempt, when the definition of the word solicitation' already includes the attempt. (See, CPL Sec. 230.02(1)(c).) In doing so...the People's reduction of the charge to the attempt to patronize a prostitute, is a reduction to an attempt to commit an attempt, a nonexistent crime." Since the People had reduced the charge to a nonexistent crime, this Court granted Defendant's motion to dismiss the reduced charge. See, 2013 WL 3586689, p 3.
In their motion to reargue dated August 14, 2013, the People assert that "by dismissing the reduced count the court imposed the incorrect remedy. A purported reduction to a nonexistent crime is invalid and does not negate the original charge, rather the reduction is void leaving the original charge intact; therefore the proper remedy is reinstatement of the original charge." See, People's motion dated August 14, 2013, p 4.
In support of their proposition, the People cite People v. Yolles, 92 N.Y.2d 960, 961, 683 N.Y.S.2d 160 (1998) and People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897 (App Term, 2d Dept, 1989). The People also cite People v. Carrabotta, 2 Misc.3d 685, 774 N.Y.S.2d 279 (Crim Ct, Queens Cty, 2003).
In Carrabotta, the Court restored the original charge after finding that the People had reduced to a nonexistent charge. However, Carrabotta, as well as Yolles and Minor are readily distinguished from the instant matter
The Carrabotta Court stated that "inasmuch as the purported reduction to a nonexistent crime was invalid, the court finds that the felony complaint remained pending and is hereby reinstated. This is consistent with the well-settled case law addressing the effect of improper reduction on the viability of a felony complaint which is purportedly reduced under CPL Sec. 180.50." 2 Misc.3d at 690, citing Yolles and Minor (emphasis added).
Both Yolles and Minor involved failures to comply with the procedure for reduction of a felony to a misdemeanor outlined in CPL Sec. 180.50(2). Neither court conducted any judicial inquiry "into whether the facts and evidence provide a basis for charging a nonfelony offense... (o)nly if the court is satisfied, after such an inquiry, that there is reasonable cause to believe that the defendant committed a nonfelony offense may the court order the indicated reduction." See, Yolles, 92 N.Y.2d at 961.
Thus, in all three matters cited by the People, the original charge was a felony, and the reduction to a misdemeanor was authorized, so long as the court adhered to the procedure outlined in CPL Sec. 180.50(2).
In the instant case, however, the original charge was a misdemeanor, a crucial difference. "It is important to remember that a criminal court lacks authority to dismiss a felony complaint unless authorized by the CPL... (and) (t)he CPL contains no authorization (for a criminal court) to dismiss a felony complaint on motion of the People." See, People v. Seneca Insurance Co., 184 Misc.2d 591, 595, 711 N.Y.S.2d 670 (S Ct, Kings Cty, 2000) (citations omitted).
The only authority the Criminal Court has to reduce a felony to a misdemeanor is provided for in CPL Sec. 180.50, and this power can only be exercised under a limited circumstance. Given Criminal Court's limited jurisdiction over felony charges, "where the reduction was invalid at its inception, the purported reduction, conversion and dismissal of the felony complaint are of no legal effect and the felony complaint remains pending.'" Carrabotta, 2 Misc.3d 691-692, citing Minor, 144 Misc.2d at 848.
Here, the original charge was a Class A misdemeanor, a charge over which the criminal court has full jurisdiction; yet the CPL is silent regarding the remedy for the improper reduction of a misdemeanor, except for CPL Sec. 170.30(1). That statute states "(a)fter arraignment upon an information...or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: (a) It is defective..." (Emphasis added).
"Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded." See, Statutes, Ch 6, Sec. 240, Expression of one thing as excluding others, McKinney's, Book 1(1971). See, also, People v. Ifill, 127 Misc.2d 678, 680, 487 N.Y.S.2d 647 (S Ct, Kings Cty, 1985). This concept is also expressed by Defendant in his Response to the People's Motion to Reargue; "the legislature did not provide (the criminal court) with authority in such circumstances to order the reinstatement of any charges that were previously dismissed." See, Defendant's Response dated September 12, 2013, p 6, para 10. 
This Court is constrained to agree; unless the original charge was a felony, there is no authority provided to the Criminal Court by the CPL to reinstate an improperly reduced misdemeanor charge.
It is important to note that Carrabotta did provide another basis for restoration of the original felony charge. "(T)he factual allegations in the accusatory instrument adequately establish all of the elements of the crime...and defendant's commission thereof. Thus, although dismissal of the improperly reduced charge...is clearly warranted, there is no reason to dismiss the accusatory instrument, which...still makes out a class E felony, over which this court has preliminary jurisdiction." See, 2 Misc.3d 690.
If this language from Carrabotta is read as support for the view that the criminal court does not have the authority to dismiss a felony charge, unless the procedure outlined in CPL Sec. 180.50 is followed, then this Court is in agreement. However, if the Carrabotta court intended to provide for a method by which misdemeanor charges can be restored when improperly reduced, this Court must disagree.
In this Court's opinion of July 15, 2013, we stated that "(t)here is no dispute that the conduct alleged in the Criminal Court complaint is facially sufficient to support the charge of Patronizing a Prostitute in the Third Degree under PL Sec. 230.04, as the Defendant's alleged conduct would constitute a solicitation or request for another person to engage in sexual conduct with him in return for a fee, as described above in PL Sec. 230.02(1)(c)." See, 2013 WL 3586689, p 1.
Yet, there is no statutory authority to support the view that the facial sufficiency of the original charge would authorize a restoration of that charge once the reduced charge is found insufficient. There is, in fact, a stronger basis to support a view that once the People have reduced a misdemeanor, whether the reduction be error or not, the original charge cannot be restored.
"It rests within the discretion of a prosecuting attorney as to what criminal charge or charges to file...against whom to file, when to file, and in what court the charges should be brought... (a) prosecutor also has discretion as to whether to alter or dismiss charges, as well as whether to add or delete charges brought before trial." See, Corpus Juris Secundum, District and Prosecuting Attorneys, Sec. 49 (2013) (citations omitted, emphasis added).
There is no authority, in either case law, or the CPL, , which would grant the criminal court the ability to reinstate a charge reduced or dismissed by the People, regardless of the facial sufficiency of the original charge. As noted above, it is the People who control what charges are brought against a defendant, not the Court. If the People choose to reduce to a nonexistent charge, they are bound by that decision.
Thus, the People's motion to reargue the dismissal of the charge of Attempted Patronizing a Prostitute in the Third Degree is denied.
(B) Defendant's Motion to Dismiss for Facial Sufficiency.
In People v. Schiavone, __ N.Y.S.2d
__, 2013 WL 5278958 (Crim Ct, Bx Cty, 2013), p 3, this court ruled that "(i)t is obvious that the New York State legislature intended for a defendant's conduct to be repeated for criminal liability to attach under PL Sec. 240.37(2), and not a singular instance of the conduct alleged."
As in Schiavone, the instant Criminal Court complaint alleges that the Defendant approached one single person, an undercover police officer, and asked that officer "to engage in sexual conduct to wit oral sex in exchange for giving (the officer) $15.00 U.S. currency." Specifically, the Defendant is alleged to have stated to the officer "I want head. I got $15.00." See, Criminal Court complaint dated January 15, 2012.
The facts here are identical to those presented in Schiavone. "Only one single instance of the conduct complained of is alleged to have occurred. At no time is the Defendant alleged to repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons.'" See, 2013 WL 5278958, p 3 (emphasis added).
Therefore, Defendant's motion to dismiss the charge of Loitering for the Purpose of Engaging in a Prostitution Offense is granted.
This shall constitute the opinion, decision, and order of the Court.