| People v Francis |
| 2015 NY Slip Op 07679 [132 AD3d 893] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Francis, Appellant. |
Andrew W. Sayegh, Yonkers, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Catalina Blanco Buitrago andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered May 2, 2012, convicting him of attempted burglary in the firstdegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged in a single indictment with multiple criminal offensesarising from two separate incidents that occurred on June 29, 2010, and July 1, 2010. Hesubsequently moved to dismiss the indictment on the ground, inter alia, that his statutoryright to a speedy trial had been violated (see CPL 30.30). Following a lengthyhearing on the matter, the Supreme Court (Molea, J.), issued a decision and order datedJanuary 9, 2012, in which it granted the defendant's motion. However, on the followingday, and clearly within the time period for reargument, the court issued an amendeddecision and order with respect to its statutory speedy trial determination, granting themotion with respect to the first six counts of the indictment, but denying it with respect tocounts seven, eight, and nine. In the amended decision and order, the court explainedthat, while the first six counts of the indictment pertained to the defendant's conduct onJune 29, 2010, and had to be dismissed because more than six months of unexcuseddelay had occurred between the filing of the felony complaint regarding that conduct andthe People's indication of readiness for trial, the criminal conduct underlying countsseven, eight, and nine was the subject of a second, separate felony complaint, and therewas no evidence of a speedy trial violation with respect to those counts. In fact, the casefile demonstrates that the People indicated their readiness for trial well within sixcalendar months after that second felony complaint was filed.
The prosecution of the defendant proceeded on counts seven, eight, and nine, whichcharged him with burglary in the first degree, robbery in the second degree, andmenacing in the second degree, respectively. Thereafter, on March 6, 2012, the defendantentered a plea of guilty to the reduced charge of attempted burglary in the first degree infull satisfaction of the indictment. As a condition of the negotiated plea, the defendantconceded his status as a second violent felony offender and, on May 2, 2012, a judgmentwas rendered sentencing him in accordance with that status.
[*2] The defendant appeals from the judgment, contendingthat his plea must be vacated because the court erred in issuing the amended decision andorder dated January 10, 2012, which denied his CPL 30.30 dismissal motion as to countsseven, eight, and nine, since the indictment had already been dismissed on the previousday, and the amended decision and order was "without legal basis or explanation." Wedisagree.
Under the foregoing circumstances, the Supreme Court did not err in amending itsinitial decision and order to deny those branches of the defendant's motion which were todismiss counts seven, eight, and nine of the indictment. A court possesses "inherentauthority to rectify a prior error in dismissing an indictment" (People v Bigwarfe, 128 AD3d1170, 1171 [2015]; see People v Russ, 292 AD2d 862 [2002]), and "wherethere is a clearly erroneous dismissal of an indictment or count thereof, it is unreasonableto foreclose a court from reconsidering its previous determination" (People vLynch, 162 AD2d 134, 134 [1990]; see People v Frederick, 62 AD3d 612 [2009], lvgranted 12 NY3d 925 [2009]; affd 14 NY3d 913 [2010]; People vContreras, 192 AD2d 417 [1993]), even in the absence of a formal motion for leaveto reargue by the People (seePeople v Bigwarfe, 128 AD3d 1170 [2015]; People v Rosa, 265 AD2d167 [1999]). Furthermore, under the facts of this case, there was no constitutional orstatutory impediment to the court's power to promptly modify its prior determination todismiss the indictment and to thereby correct the previous error (see People vRosa, 265 AD2d 167 [1999]; People v Lynch, 162 AD2d 134 [1990]; seealso Matter of Lionel F., 76 NY2d 747 [1990]).
Here, the Supreme Court recognized the error only one day after issuing the initialdecision and order, well within the time period during which, for example, a motion forleave to reargue could have been made and before the People even had a reasonableopportunity to make such a motion. Moreover, while any present challenge to the court'sdetermination of the statutory speedy trial issue in the amended decision and order wasforfeited by the defendant's knowing, voluntary, and intelligent plea of guilty (seePeople v O'Brien, 56 NY2d 1009 [1982]; People v Briggs, 123 AD3d 1051 [2014]; People v Bediako, 119 AD3d598 [2014]; People vSze, 113 AD3d 795 [2014]), we note, in any event, that the error in initiallydismissing counts seven, eight, and nine based on an alleged statutory speedy trialviolation was clearly apparent from the documents in the court file. Accordingly, theprompt issuance of the amended decision and order correcting the prior mistake in thiscase was not improper or jurisdictionally defective.
In reaching the opposite conclusion, our dissenting colleague does not dispute thatthe hearing court was factually correct in determining that the second felony complaint inthis case was filed approximately six months after the first, and thus that the criminalcharges emanating from that second felony complaint were not subject to a validdismissal on statutory speedy trial grounds. Rather, relying upon several decisions whichaccurately recite the general proposition that a trial court loses jurisdiction to correct itsown previous, nonclerical errors once final judgment has been rendered or sentence hascommenced in a criminal action (see e.g. People v Richardson, 100 NY2d 847[2003]; Matter of Campbell v Pesce, 60 NY2d 165 [1983]; see also CPL430.10), the dissent concludes that, once the hearing court in this case issued its initialdetermination dismissing the indictment, it lacked the authority to correct thatdetermination on the following day to accord with the true facts of the case. However,the relevant decisions specifically addressing the timely correction of errors in ordersdismissing indictments have uniformly determined that there is no impediment to themaking of such corrections.
For example, in People vBigwarfe (128 AD3d 1170 [2015]), as in this case, the indictment contained twosets of criminal charges that arose from distinct incidents occurring on different dates,and were the subject of separate accusatory instruments filed at different times. Thedefendant therein moved to dismiss the entire indictment on the ground that his statutoryright to a speedy trial had been violated. The trial court initially granted the motion anddismissed the indictment. However, although no formal motion for leave to reargue hadbeen made, the court reconsidered the dismissal upon a letter request by the prosecution,and thereafter reinstated the counts of the indictment that were set forth in the secondaccusatory instrument, since no CPL 30.30 violation had occurred as to them. Inaffirming the court's determination, the Appellate Division, Third Department, held thatthe reinstatement of the counts constituted a proper exercise of the court's "inherentauthority to rectify a prior error in dismissing an indictment" (id. at 1171).Accordingly, [*3]the decision in Bigwarfe fullysupports an affirmance in the present case. Moreover, Appellate Division decisions in theFirst Department and the Fourth Department similarly have recognized a trial court'sinherent power to timely rectify a prior error by reinstating a previously dismissedindictment (see People v Russ, 292 AD2d 862 [2002]; People v Rosa,265 AD2d 167 [1999]; People v Lynch, 162 AD2d 134 [1990]).
The dissent posits that the foregoing decisions are distinguishable from the presentcase because they did not involve sua sponte corrective orders. However, no formalmotion to correct the error was made in People v Bigwarfe or in People vRosa, and the dissent does not cite any statutory or decisional authority requiring themaking of either a formal motion or an informal application as a precondition to thecourt's corrective action. Nor does the dissent point to any logical basis for engraftingsuch a requirement upon the court's exercise of its inherent powers. In this regard, wedecline to adopt the incongruous proposition that a court may exercise itswell-established inherent power to correct errors in its orders only when a partyaffirmatively requests that it do so.
Additionally, there is a more fundamental problem in the dissent's attempt todistinguish the foregoing decisions from the present case on the basis that the court actedsua sponte here. If, as the dissent maintains, the Supreme Court lost all jurisdiction to actin this matter once it issued the order dismissing the entire indictment pursuant to CPL30.30, then that court would be powerless to correct any errors in its order, regardless ofwhether it sought to do so on its own motion in the exercise of its inherent authority, orpursuant to a formal motion (e.g., for leave to reargue) made by the prosecution for thesame relief. Of course, that is not the law. Rather, the Court of Appeals and our ownCourt have entertained numerous appeals in cases where a trial court granted a motionfor leave to reargue with regard to an order dismissing the entire indictment under CPL30.30, and all of the resulting appellate decisions have reviewed the merits of the ordersmade upon reargument without any suggestion that those orders were improper becausethe trial courts no longer possessed jurisdiction to render them (see e.g. People vChavis, 91 NY2d 500 [1998]; People v Lynch, 103 AD3d 919 [2013]; People v Smith, 88 AD3d749 [2011]; People v Aaron, 201 AD2d 574 [1994]). The foregoing case lawdemonstrates that a trial court retains the authority both to entertain a motion for leave toreargue and to exercise its inherent power to correct errors following the dismissal of anindictment pursuant to CPL 30.30. In arguing that an order of dismissal pursuant to CPL30.30 deprives the court of jurisdiction to act any further in the matter, the dissent wouldeffectively vitiate the prosecution's right, repeatedly recognized in the foregoingdecisions, to timely seek reargument in connection with such dismissals.
Finally, the dissent makes the related assertion that a motion by the People in thiscase for leave to reargue to correct the date of filing of the second felony complaintwould have been fruitless. However, the potential merit of such a motion is irrelevant tothe present discussion. It is the fact that a motion for leave to reargue could have beenentertained by the court—rather than whether it would have beensuccessful—that is significant, for if the People could seek to correct the error inthe dismissal order by way of reargument, and if the court had the authority to entertainthe merits of such a motion (as case law instructs that it does), then there is no reason thatthe hearing court could not similarly act to correct the error in the exercise of its inherentauthority, as the relevant case law holds and as was done here. Moreover, even if wewere to accept the dissent's proposition that reargument would have been inappropriatebecause the People previously had relied upon the erroneous filing date in opposing thedismissal motion, that oversight by the People did not compel the hearing court tolikewise adopt the demonstrably false filing date and to refrain from exercising itsinherent corrective powers to rectify the error once it was discovered. The dissent'ssuggestion that the court was bound to accept allegations of fact which it knew to beinaccurate from the face of the record is unpersuasive, and we find no legal support forcompelling a trial court to adopt a fictional account of a case under these circumstancesmerely because the parties have erroneously done so. Indeed, it appears that theerroneous date at issue in this case, which was evident on the face of the record andcould not have been controverted by the defendant, is precisely the type of mistake thatthe court's inherent power to correct errors is designed to remedy.
Thus, the significance of noting the People's ability to seek reargument in the context[*4]of CPL 30.30 dismissal orders lies in demonstratingthat the trial court's exercise of its inherent power to correct the error in this case wasauthorized and timely, having been made well within the period during whichreargument could have been sought and considered. Accordingly, since the hearing courtin the present case could have entertained a timely motion for leave to reargue to correctits initial order, it properly exercised its inherent authority to correct the error in thatorder a mere day after it was issued, without awaiting the making of such a motion by thePeople. As such, a valid indictment was pending at the time of the defendant's plea, andhis plea of guilty was not jurisdictionally defective.
In view of the foregoing discussion, we do not address the parties' remainingcontentions. Mastro, J.P., Miller and Duffy, JJ., concur.
Balkin, J., dissents and votes to reverse the judgment, on the law, to vacate the pleaof guilty, to vacate the amended decision and order dated January 10, 2012, and to remitthe matter to the Supreme Court, Westchester County, for further proceedings, with thefollowing memorandum: As noted by the majority, the Supreme Court granted thedefendant's motion to dismiss the indictment, in its entirety, on the ground that thedefendant had been denied a speedy trial. The next day, however, the court, sua sponte,issued an amended decision and order, in which it granted the defendant's speedy trialmotion only as to the first six counts of the indictment. It denied the motion as to theremaining three counts, and did so on a ground that the People had never asserted. Idisagree with the majority's conclusion that the Supreme Court's sua sponte "do-over" ofits order was within the court's inherent power to correct its own mistake. Accordingly, Ifind that the defendant's plea of guilty rests on a jurisdictional defect.
On June 29, 2010, the defendant pointed a gun at Darryl Reid and accused him of notintending to pay a debt. After a brief struggle, the defendant shot Reid in the back of thehead, seriously injuring him. On July 1, 2010, two days later, the defendant, once againarmed, broke into the home of Reid's brother, Dwan, and robbed Dwan at gunpoint. OnJuly 19, 2010, a felony complaint was filed with respect to the first incident and, sixmonths later, in February 2011, an entirely separate felony complaint was filed withrespect to the second incident. An indictment filed in April 2011 charged the defendantwith crimes arising from both incidents.
In October 2011, the defendant moved to dismiss the indictment on the ground thathe had been denied his statutory right to a speedy trial pursuant to CPL 30.30. Inopposition to the motion, the People argued that, although the criminal action hadcommenced on July 19, 2010, with the filing of the first felony complaint, the defendant'smotion should have been denied because less than six months of delay was chargeable tothem under CPL 30.30. In its decision directing a hearing, the Supreme Court agreedwith the People that, for the purposes of CPL 30.30, the action had been commenced onJuly 19, 2010. After the hearing was held, the People submitted another memorandum oflaw. Again, they unequivocally took the position that the action had commenced on July19, 2010, stating: "As set forth in the People's opposition to the defendant's motion todismiss, the felony complaint in this matter was filed on July 19, 2010. The People haduntil January 19, 2011, or 184 days, to announce readiness for trial. . . .[S]ince at least 138 days are excludable . . . the People stayed well withinthe 184 day limit."
The Supreme Court issued its decision and order on January 9, 2012. The court againheld that, for the purposes of CPL 30.30, the action had commenced on July 19, 2010:"[a]t the outset, the Court finds that the instant criminal action commenced on July 19,2010, upon the filing of a felony complaint in the Yonkers City Court which charged theconduct which is the subject of the instant indictment." It also held that more than sixmonths of delay was chargeable to the People. Therefore, it granted the defendant'smotion to dismiss the indictment. The clerk entered the dismissal order that day.
The next day, however, the Supreme Court issued an amended decision and order.[*5]Rather than dismissing the indictment in its entirety,the court, in the amended decision and order, granted the defendant's motion only withrespect to the crimes alleged to have taken place on June 29, 2010. It denied the motionwith respect to the crimes alleged to have taken place on July 1, 2010. The court heldthat, although the criminal action with respect to the incident on June 29, 2010, hadcommenced on July 19, 2010, with the filing of the first felony complaint, the criminalaction with respect to the incident on July 1, 2010, had commenced six months later, inFebruary 2011, with the filing of the second felony complaint. Thus, the court held that,although more than six months were chargeable to the People with respect to the crimesrelated to the incident on June 29, the People had announced their readiness for trialwithin six months as to the crimes related to the incident on July 1. The record is silent asto what prompted the amended decision and order.
In November 2012, the defendant pleaded guilty. His primary contention on thisappeal is that the Supreme Court no longer had jurisdiction over the case once itdismissed the entire indictment on January 9, 2012. Accordingly, he contends that theamended decision and order dated January 10, 2012, was a nullity, and that he hadpleaded guilty when no accusatory instrument was pending.
Preliminarily, as my colleagues implicitly agree, the defendant's jurisdictional claimsurvives his otherwise valid waiver of his right to appeal (see People v Zanghi,79 NY2d 815, 817 [1991]; People v Sze, 113 AD3d 795, 796 [2014]; People v Siminions, 112 AD3d974, 975 [2013]). That is because a "valid and sufficient accusatory instrument is anonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case,42 NY2d 98, 99 [1977]; see People v Hansen, 95 NY2d 227, 230 [2000]; People v David, 95 AD3d1031, 1031 [2012]; Peoplev Long, 56 AD3d 685, 685 [2008]; People v Flores, 43 AD3d 955, 955 [2007]).
A court has the inherent power to correct its own mistakes, but the extent of thatpower depends on whether the case is still pending. As the Court of Appeals said inMatter of Van Leer-Greenberg v Massaro (87 NY2d 996 [1996]), "[b]eforesentence is imposed, trial courts in criminal cases have the general inherent authority tocorrect their own mistakes" (id. at 998; see People v Bartley, 47 NY2d965 [1979]; People v Cimino, 163 App Div 217, 218-219 [1914]). Thus, a courtmay, in the exercise of its inherent power, rethink a ruling and change its mind, so longas at least part of the case is still pending (see Matter of Lionel F., 76 NY2d 747,749 [1990]). In People v Lemmons (270 App Div 828 [1946]), for example, thetrial court dismissed one of the counts in the indictment during trial, but changed its mindand reinstated that count before the trial ended. On appeal, we held that the court waswithin its power to rethink its ruling because it had done so while the case was stillpending: "It was a proper exercise of the inherent power of the court to correct any errorsin its own rulings, provided such correction be made before the termination of thetrial or the proceedings" (id. at 828 [emphasis added]; see People vCimino, 163 App Div at 218-219).
A court's power to rethink a ruling is much narrower after the case is no longerpending. As the Court of Appeals said long ago in Bohlen v Metropolitan El. Ry.Co. (121 NY 546, 550-551 [1890]), courts "should not, after the finaljudgment, by amendment, change a ruling upon the law, or alter the decision uponthe merits, for, by so doing, the substantial rights of the adverse party would be reallyaffected" (id. at 551 [emphasis added]; see People v Wright, 56 NY2d613, 614 [1982]; People v Minaya, 54 NY2d 360, 365 [1981]; Herpe vHerpe, 225 NY 323, 327 [1919]). The Court was more categorical in Matter ofCampbell v Pesce (60 NY2d 165 [1983]), in which it rejected the contention that acourt had the inherent power to vacate a plea after the defendant had already beensentenced: "[i]n no instance have we recognized a court's inherent power to vacate a pleaand sentence over defendant's objection where the error goes beyond mere clerical errorapparent on the face of the record and where the proceeding has terminated by the entryof judgment" (id. at 169; see Matter of Kisloff v Covington, 73 NY2d445, 452 [1989]). Further, the law is settled that "a trial court has no revisory or appellatejurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d443, 444 [2008]; see Carterv Johnson, 110 AD3d 656, 659 [2013]; JSO Assoc., Inc. v Price, 104 AD3d 737, 738 [2013]; People v Brown, 6 AD3d1210, 1210 [2004]; Osamwonyi v Grigorian, 220 AD2d 400, 401 [1995]; cf. Matter of Shawn H. v KimberlyF., 115 AD3d 744, 745 [2014]).
A "criminal action . . . terminates with the imposition of sentence orsome other final [*6]disposition in a criminal court of thelast accusatory instrument filed in the case" (CPL 1.20 [16] [emphasis added]; seeCPL 210.20 [4]). The dismissal of an indictment under CPL 30.30 barsreprosecution of the charges in it and constitutes a final disposition of the action (seeCPL 1.20 [16]; 210.20 [4]). Thus, when the Supreme Court granted the defendant'smotion in its entirety on January 9, 2012, its inherent power to rethink its rulingsterminated (cf. People v Lemmons, 270 App Div at 828; People vCimino, 163 App Div at 218-219).
The majority concludes that the Supreme Court had the inherent power to change itsmind, even sua sponte, because it did so when a motion for leave to reargue would havebeen permissible. In support of its conclusion, my colleagues rely on cases from the otherDepartments (see People vBigwarfe, 128 AD3d 1170 [2015]; People v Russ, 292 AD2d 862[2002]; People v Rosa, 265 AD2d 167 [1999]; People v Lynch, 162AD2d 134 [1990]), but all four cases are distinguishable from what happened here. First,and most important, none of the trial courts in those cases acted sua sponte. In Lynchand Russ, the People moved for leave to reargue. In Bigwarfe, thePeople made a "letter request to reconsider," and the court, before ruling on the request,conducted a hearing in which the defendant was given a full opportunity to be heard(People v Bigwarfe, 128 AD3d at 1171). In Rosa, the court had alreadygranted the People leave to re-present the case to the grand jury when the defendantwithdrew his dismissal motion and asked the court to reinstate the indictment as part of aplea agreement (People v Rosa, 265 AD2d at 167). Thus, none of those casessupports the proposition that a court may, sua sponte, reinstate an accusatory instrumentthat it has already dismissed in its entirety.
Second, the issue in Lynch, Russ, and Rosa involveddismissals for defects in the grand jury proceeding, not final dismissals of the actionspursuant to CPL 30.30. Indeed, unlike CPL 30.30 dismissals, which are final, theparticular defects in those cases were of the sort that, by statute, may be remedied withleave of the court. Specifically, the Criminal Procedure Law expressly provides that acourt may grant the People leave to re-present the case to the grand jury after certaintypes of dismissals (see CPL 210.20 [4]). In other words, the dismissal of anindictment for certain defects in grand jury proceedings is not necessarily a "finaldisposition" (CPL 1.20 [16]). The court's inherent power, accordingly, has not terminatedafter those dismissals. Indeed, as the First Department has held, when the court, uponreview of the grand jury minutes, has dismissed an indictment with leave to re-present,the felony complaint remains pending to form the foundation of the new charges (see People v Wiltshire, 23AD3d 86, 89 [2005]; People v Lopez, 10 AD3d 264, 266-267 [2004], lvgranted 3 NY3d 758 [2004]; affd 4 NY3d 686 [2005]). Thus, the action hasnot terminated at all. The dismissal of an indictment under CPL 30.30, by contrast, is,undeniably, a final disposition.
My colleagues assert that so long as the court has the power to hear reargument, itmay change its ruling sua sponte, even where the action has "terminate[d]" (CPL 1.20[16]). The majority, however, cites no case in which such a sua sponte change of rulingwas upheld.
Moreover, as to the majority's point that the Supreme Court issued its order beforethe People even had a reasonable opportunity to make a motion for leave to reargue, Inote that reargument would not have been proper in any event because reargument is notavailable as a "do-over" for a party that has made the wrong arguments or neglected topresent available evidence the first time (People v Kevin W., 22 NY3d 287, 296 [2013], lvgranted 19 NY3d 1027 [2012], affd 22 NY3d 287 [2013]; see Matter of Anthony J. Carter,DDS, P.C. v Carter, 81 AD3d 819, 820 [2011]; V. Veeraswamy Realty v YenomCorp., 71 AD3d 874, 874 [2010]; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d590, 593 [2006]; McGill v Goldman, 261 AD2d 593, 594 [1999]). ThePeople argued, before and after the CPL 30.30 hearing, that the action commenced onJuly 19, 2010, with the filing of the first felony complaint, but that there was sufficientexcludable time to bring them within the six-month limit. In its written orders bothbefore and after the CPL 30.30 hearing, the court did not overlook the People's argumentas to the commencement date, but agreed with it. Thus, the court's change of result wasbased on a ground that had never been asserted. In other words, what happened here isnot even remotely akin to reargument (cf. Matter of Lionel F., 76 NY2d at749).
Rejection of the majority's conclusion would not change settled law. It would merelyaccord with the settled doctrine that a trial court has no "revisory or appellate jurisdictionto vacate [*7]its own order, sua sponte" (People vBrown, 6 AD3d at 1210; see Herpe v Herpe, 225 NY at 327; Reisman vColeman, 226 AD2d 693, 693 [1996]), and certainly has no inherent power to do soafter the case has terminated with a final disposition (see CPL 1.20 [16];Matter of Campbell v Pesce, 60 NY2d at 169; Matter of Kisloff vCovington, 73 NY2d at 452).
In sum, I conclude that the Supreme Court acted in excess of its power when, afterterminating the action, it sua sponte issued the amended order (see Herpe vHerpe, 225 NY at 327; People v Brown, 6 AD3d at 1210). Inasmuch as theamended order was a nullity, the defendant's plea of guilty rests on a jurisdictional defectand must be vacated.
Accordingly, I respectfully dissent.