| People v Cruz |
| 2011 NY Slip Op 05928 [86 AD3d 782] |
| July 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Juan Cruz,Defendant. New York State Police, Appellant. (And 10 Other RelatedActions.) |
—[*1] Law Office of Kevin R. Bryant, Kingston (Kevin R. Bryant of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Ulster County (Williams, Jr., J.),entered December 29, 2010, which affirmed a judgment of the Justice Court of the Town ofUlster denying motions by the New York State Police to quash subpoenas issued by the People.
Defendants were each charged by way of simplified traffic informations with violating theVehicle and Traffic Law. After they pleaded not guilty, by mail, to the charges against them, theJustice Court of the Town of Ulster scheduled and notified each defendant of an appearance datefor a pretrial conference/trial.[FN1]The People then issued and served subpoenas ad [*2]testificandum upon the various State Troopers responsible forissuing the simplified informations to secure their appearance on such dates. The State Policemoved, on behalf of the individual troopers, to quash the subpoenas. Justice Court denied themotions and the State Police unsuccessfully appealed to County Court. The State Police nowappeals to this Court.[FN2]
We affirm. The authority to issue a subpoena requiring attendance as a witness at a criminalaction or proceeding is unquestioned (see CPL 610.10). However, because of the possibleconsequences of a failure to comply with such subpoena, courts have imposed limitations on theuse thereof (see Matter of Terry D., 81 NY2d 1042, 1044 [1993]; People vNeptune, 161 Misc 2d 781, 783 [1994]). Indeed, subpoenas can only be issued "for the validpurpose of compelling the production of evidence before a court . . . [and][r]equiring a witness to attend criminal proceedings when there is no chance of testifying servesno valid purpose" (People v Neptune, 161 Misc 2d at 783; cf. United States vStandard Oil Co., 316 F2d 884, 897 [1963]). The crux of the argument of the State Policehere is that, under Vehicle and Traffic Law § 1806, Justice Court was without authority toschedule any subsequent hearings or proceedings in these actions prior to defendants' in-courtarraignment. The argument continues that, since no such arraignment had occurred before theappearances at issue, such appearances should have been for the purposes of arraignment and, asno testimony is taken at an arraignment, the People could not require State Troopers to attend.The State Police also contends that, even if defendants were permitted to waive their rights to anarraignment, Justice Court was obligated to personally arraign those defendants who did notcomply with the statutory procedure for doing so. We disagree.
Generally, after a simplified information has been filed, a defendant must appear personallyto be arraigned, except where "a procedure is provided by law which is applicable to all offensescharged in such simplified information and, if followed, would dispense with an arraignment orpersonal appearance of [a] defendant" (CPL 170.10 [1] [a]; see People v Perry, 87 NY2d353, 355-356 [1996] [superceded by statute]; People v Mitchell, 235 AD2d 834, 835[1997], lv denied 89 NY2d 1038 [1997]). Prior to April 2009, Vehicle and Traffic Law§ 1806 [*3]provided such an exception for defendantsentering a plea of not guilty to a traffic infraction, allowing such defendants the option ofsubmitting their plea by mail, following which the court would schedule a trial date(see Vehicle and Traffic Law former § 1806; People v Perry, 87 NY2d at356). In 2009, the Legislature amended the statute by, among other things, substituting the word"appearance" for the word "trial" so that the statute now reads: "[u]pon receipt of [a defendant'snot guilty plea], the court shall advise the violator of an appearance date by first classmail" (Vehicle and Traffic Law § 1806 [emphasis added]).
Contrary to the assertions of the State Police, an examination of the plain language of thestatute reveals that the amendment did not eliminate the exception to the general requirement thata defendant be arraigned in person (see McKinney's Cons Laws of NY, Book 1, Statutes§ 232, at 394-395; People vFinley, 10 NY3d 647, 654 [2008]).[FN3]Instead, it appears that the purpose of the amendment was to provide statutory authority for thecommon practice of scheduling a pretrial conference—as opposed to a trial,only—for defendants who pleaded not guilty by mail (see Carrieri, PracticeCommentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law §1806, 2011 Supp Pamph, at 348).[FN4]Moreover, while it is not clear on the record before us which, if any, defendants failed to complywith the statutory procedures for waiving their right to an in-person arraignment, a defendantmay do so by appearing and entering a plea (see People v Roberts, 6 AD3d 942, 943 [2004], lv denied 3NY3d 662 [2004]) or appearing and proceeding to trial (see People v Golston, 13 AD3d 887, 889 [2004], lv denied5 NY3d 789 [2005]). Accordingly, the failure of Justice Court to arraign each defendant inperson did not deprive it of jurisdiction to schedule a pretrial conference/trial date or prevent thePeople from issuing subpoenas for the appearance of troopers to appear on such date, when theywould be required to testify should the attempt to dispose of the matter by plea fail and the caseproceed to trial (see People v Doe, 271 AD2d 29, 31 [2000], lv denied 95 NY2d934 [2000]).[FN5][*4]
The remaining contentions of the State Police have beenconsidered and are unpersuasive.
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The notice advised eachdefendant that, if the case were not resolved at the pretrial conference, it would proceed to trial,but that each person could request a separate trial date.
Footnote 2: We note that a judgment thatdenies a motion to quash a subpoena "issued by a criminal court during a criminal [proceeding]and addressed to an entity which is not a party to the criminal proceeding is appealable on thetheory [that] such a determination constitutes a final judgment in a proceeding 'on the civil sideof a court vested with civil jurisdiction' " (People v McIntosh, 199 AD2d 540, 541[1993], quoting Matter of Cunningham v Nadjari, 39 NY2d 314, 317 [1976]; seePeople v Bagley, 279 AD2d 426, 426 [2001], lv denied 96 NY2d 711 [2001];People v Johnson, 103 AD2d 754, 755 [1984]; People v Marin, 86 AD2d 40, 42[1982]). Furthermore, unlike criminal actions in which, after an appeal is taken to County Courtfrom an order of a local criminal court, an appeal to this Court is improper (see CPL450.90 [1]; 460.20 [2] [b]; People v Gogg, 285 AD2d 842, 842 [2001]; Town ofCoeymans v Malphrus, 76 AD2d 1002 [1980]), an appeal to this Court lies as of right froman order of County Court that affirmed the civil judgment of Justice Court (see CPLR5703 [b]).
Footnote 3: Notably, the amendment did notmake any reference to an arraignment.
Footnote 4: The courts had been criticizedfor sending out a conference notification—in the absence of any express authority to do sounder the statute—because defendants "felt coerced or obligated to attend a conferencedate to plea bargain a traffic ticket" (Carrieri, Practice Commentaries, McKinney's Cons Laws ofNY, Book 62A, Vehicle and Traffic Law § 1806, 2011 Supp Pamph, at 348).
Footnote 5: We are not unsympathetic to thefrustration expressed by the State Police that, inasmuch as the overwhelming majority of casesare resolved by plea without any testimony being taken, the true purpose of the issuance of thesubpoenas appears to be to secure the troopers' attendance in order to provide information thatwill assist the People in obtaining such pleas, as a result of which the troopers are unavailable forother law enforcement duties. However, the convenience of the State Police must be balancedwith the interests of judicial economy and of the defendants in providing the opportunity todispose of each case in a single appearance. While there are presumably more efficient meansthat could be utilized by the People to obtain information from the troopers, it is not the provinceof the courts to dictate the procedures used by the People, so long as those procedures are lawful.