Whether you are litigating a criminal case in a district, city, village or town court for the first time or for the thousandth time, it is always important never to forget two important issues that come up almost immediately:
1. Service of Process and
2. Sufficiency of the Accusatory Instrument
It is important to remember that litigation in this area is continuous, and is not settled by any means. The Court of Appeals in People v. Kalin, 12 NY 3d 225, 878 NYS 2d 653(March 2009) is an example where sufficient court information can be declared defective even after the issue had previously been considered settled.
Service of Process
With the exception of the warrant of arrest, the two primary means of service of process, in a criminal action are by appearance ticket under Article 150 of the Criminal Procedure Law “CPL” and criminal summons under Article 130 of the CPL. Article 600 of the CPL relates to service on corporations. The appearance ticket directs a person to appear in a designated local court at a specific future time in connection with the designated offense, CPL 150.10. Failure to file an accusatory instrument by the return date of the appearance ticket, leaves the court without jurisdiction, CPL 150.50 (1). Some courts have dismissed the case where an accusatory instrument has not been filed, see People v. Consolidated Edison 159 Misc.2d 354, 604 N.Y.S. 2d 482 (N.Y.C. Crim Court 1993). Other courts have simply adjourned the matter until the People would be able to provide an appropriate accusatory instrument, see People v. Consolidates Edison Co. of NY 153 Misc 2d 595, 582 N.Y.S. 614 (N.Y.C. Crim Court 1992). However, where the accusatory instrument had not been filed at the appropriate time, the speedy trial time would start to run against the People on the actual return date, see People v. Stirrup, 91 N.Y.2d 434, 671 N.Y.S. 2d 433 (1998).
Many times, summons and appearance tickets are mis-named because of older paper work from smaller villages and towns in upstate communities. However, a mistake of labeling the process – accusatory instrument as a summons or an appearance ticket does not deprive the court of jurisdiction nor will it make the ticket defective, see People v. Jarmin 93 Misc 2d 950, 403 N.Y.S.2d 886 (Crim Court NY County (1978).
Under CPL 150.40 (2) an appearance ticket other than one for a traffic infraction related to parking, must be served personally, and the agent for service must be a local police officer, or public servant duly authorized by state or local law under CPL 150.20(3). Another exception from personal service is under CPL 150.40 (2), is for violations of local zoning, building or sanitation codes where personal service may be substituted by other service methods of CPLR 308 (substituted service). This statute has been declared constitutional by at least one court, see People v. Braun Brothers Brushes 15 Misc 3d 1050, 838 N.Y.S.408 (Justice Court 2007). A criminal summons may be served by a police officer or a complainant at least 18 years of age or by any other person 18 years of age or older as designated by the court, CPL 130.40 (1). Unlike the appearance ticket there is no provision mandating a criminal summons be served personally, non the less, most courts interpret the statute to require personal service.
People v. Turkel 130 Misc 2d 47, 494 N.Y.S. 2d 984 (N.Y. Crim Court 1984).
The appearance ticket or the summons are both considered invitations to appear and as such they are generally viewed differently from a civil summons or complaint where jurisdiction is accordingly acquired by service of process. The jurisdiction of the court in a criminal case is acquired by the filing of the legally sufficient accusatory instrument with the local criminal court. People v. Grant 16 N.Y.2d 722, 262 N.Y.S.2d 106 (1965) Shirley v. Schulman 78 N.Y.S.2d 915, 573 N.Y.S.2d 456(1991).
It is also clear that service and personal jurisdiction cannot be contested by way of a “special appearance of counsel” as provided for in a civil action under CPLR 320. In People v. Byfield 131 Misc 2d 884, 502 N.Y.S.2d 346 (NY Crim Court 1986) where the court rejected counsels’ “special appearance” to contest service as unauthorized in a criminal action. The court held that service of an appearance ticket was a mere invitation to appear and that a motion to dismiss the information could only be made after the actual arraignment of the defendant under CPL 170.30. Therefore, the court held that a special appearance was inappropriate and irrelevant in criminal cases. Improper service alone will not result in a dismissal in a criminal action. However, several courts have found compatible grounds to dismiss cases where service was improper, see In People v. Gross, 148 Misc 232, 560 N.Y.S.2d 277 (Crim Ct, Queens County), where the court criticized the issuance and the mailing of the appearance tickets that were improperly served by mailing to thousands without regard to the statute, and thereby dismissed the numerous violations due to insufficient information and in the interest of justice. In People v. Neuberg, a court granted a motion to dismiss in the interest of justice for building violations against a religious organization for improper service and where there was also an indication that selective prosecution had occurred against the defendants which related to the abuse of process. In People v. DiLorenzo, 149 Misc 791 566 N.Y.S.2d 458 (Bronx Crim Ct 1990), the failure to personally serve an appearance ticket resulted in the dismissal of the action due to the running of the speedy trial time. In DiLorenzo, the court also noted in a criminal action, speedy trial time begins to run when the accusatory instrument is filed. However, as no personal service was efficiated on the defendant, the speedy trial time began to run almost immediately, and as such, the charges were dismissed.
A properly served appearance ticket, however, will not be dismissed even if there are actual defects within the content of the ticket. In People v. Dillin, 148 Misc 2d 311, 560 N.Y.S. 2d 940(N.Y.C. Crim Ct 1990), an appearance ticket failed to designate the proper specific offenses against the defendant. However, the incorrect statutory references could be cured and could not, in and of themselves, render the ticket defective.
An appearance ticket that provided an incorrect date, of 8/1/98 under the date of appearance where there was no indication if the order of reference was either a day or a month would not result in the dismissal based upon the fact that the Court indicated that the defendant arrive on the correct date and thus the date became only an academic issue, as the Court acquired personal jurisdiction, see People v. Giusti 176 Misc 2d 377, 673 N.Y.S. 2d 824 (N.Y.C. Crim Ct 1998). Also, where an incorrect return date of Sunday, as opposed to a week day, was indicated on the appearance ticket such error did not deprive the local court of jurisdiction over the proceeding, see People v. Fatsis 180 Misc 2d 172, 688 N.Y.S.2d 378 (Justice Court 1999).
A criminal summons under CPL 130 is different from an appearance ticket specifically due to the fact that for an order to be issued a sufficient accusatory instrument must be filed on the date the Court issues the summons, CPL 130.30. In addition, the issue of the summons will not in of itself toll speedy trial time, see People v. Griffen 141 Misc 2d 627, 533 N.Y.S.2d 807 (N.Y.C. Crim Ct 1988).
Service of a summons on a criminal corporation is governed under Article 600 of the criminal procedure law. CPL 600.10 indicates that a court attendance of a corporation may be accomplished by the issuance and service of a summons or an appearance ticket if such action has been or is about to commence in a local criminal court. A corporation may be properly served by serving an officer or director, manager or general agent or cashier or assistant cashier of such corporation or any other agent designated for service by such corporation, CPL 600.10(1). A court may issue a default judgment against the corporation for failure to appear on an arraignment date and issue the maximum fine permitted by statute CPL 600(20). If the corporation should appear after the way of a default judgment, the court may provide counsel with a special appearance to contest the jurisdiction, see People v. Eica Construction Corp. 85 Misc 2d 1026, 381 N.Y.S.2d 377, (District Ct, Suffolk Cty 1975) and People v. Consolidated Edision Co. 42 Misc 2d 422, 248 N.Y.S.2d 267 (New Rochelle City Ct 1964).
Service of a corporation must be made upon the proper person as designated by statute. For example, the Secretary of State of New York is a proper agent for service of process, under Business Corporation Law 304, see People v. New York Paving Inc., 155 Misc 2d 934, 951 N.Y.S.2d 318 (New City Crim Ct 1992). In addition, an attorney may be designated for service of process, see People v. Erin Construction Corp. 136 Misc 2d 807, 519 N.Y.S.2d 466 (N.Y. Ct 1987). However, service on a bartender without any indication of authority is not a proper agent for service for a corporation, see People v. Alrich Restaurant Corp. 53 Misc 2d 574, 279 N.Y.S.2d 624 (District Ct 1967).
While a summons and appearance ticket are simply a request to appear in court, the warrant of arrest is considerably different. A warrant of arrest can be issued upon the filing of any accusatory instrument with the very important exception of the Simplified Information, CPL 120(20). The warrant of arrest is different from the bench warrant. A bench warrant is only issued if the defendant has appeared and has been arraigned, but has failed to make a subsequent scheduled court appearance, CPL 530.70, see People v. Ocasio 106 Misc 2d 138, 430 N.Y.S.2d 971 (County Ct 1980).
The warrant may be considered defective for a variety of reasons. For example, a warrant may fail to contain an adequate description of the defendant under the name John Doe, McIntyre v. State 142A.D.2 856, 530 N.Y.S.2d 898 (3d Dept. 1988); or failure to name the court, see Titus v. Hill 134 A.D.2d 911, 521 N.Y.S.2d 932 (4th Dept. 1987); or failure to include the title of the offense charged, see People v. Gaston 83 A.D.2d 761, 443 N.Y.S.2d 491 (4th Dept. 1981).
A warrant of arrest issued by a village court or a town court may be executed in the county of issuance or any adjoining county. CPL 120.70 (2)(a). However, under certain circumstances, a warrant of a Town or Village or City Court maybe executed in a county outside its geographical area if a local court in that specific county can endorse a warrant of the issuance court, CPL 120.270(2)(b).
The Accusatory Instrument
Warrants of arrests can be issued for prosecutors information, felony and misdemeanors complaints and long form information, CPL 120.10. However, these accusatory instruments should be sufficient in order for a Court to issue the appropriate warrant. For new comers, CPL 100.15 and 100.40 set the standards for the sufficiency of most of the accusatory instruments in the local criminal courts. A complaint must satisfy the requirement of CPL 100.15, which includes the requirement of the appropriate name of the court and title of the action as well as verification of the person known as the complainant under subdivision 1, a designation of the offense charged under Subdivision 2 and under Subdivision 3, the factual part of the instrument must contain a statement alleging facts and evidentary material supporting or tending to support the charges based upon personal knowledge or upon information and belief. These allegations should not be set forth in an conclusory manner or the complaint will be dismissed, see People v. Dumas 68 N.Y.S.2d 729, 506 N.Y.S.2d 319 (1986). While a complaint may be sufficient for the issuance of a warrant, such misdemeanor complaint should be converted to full information in order to adequately proceed to the trial CPL 170.65(1). Such misdemeanor complaints can be supplemented by depositions to sufficiently convert the complaint into an information, CPL 100.20. However, a defendant may waive the right to an information and proceed to the trial or plead guilty with a misdemeanor complaint alone as a basis for the prosecution under CPL 170.65(3).
Beside supplementing a misdemeanor complaint with a supporting deposition, an information can stand on its own, and it can be a verified written accused accusation charging either a misdemeanor or petty offense and may serve both to commence the action and as a basis for the prosecution, CPL 120. (4) CPL 100.10(1), and see People v. McDermott 69 N.Y.2d 889, 515 N.Y.S.2d 225 (1997). In People v. Alejandro 70 N.Y.S.2d 533, 517 N.Y.S.2d 927 (1987), the Court of Appeals held that factual allegations setting forth a prima facia case must be established in order to avoid a jurisdictional defect which may be brought up for the first time on appeal after the completion of the trial and sentence. However, the Court of Appeals clarified their ruling in the case of People v. Casey 95 N.Y.2d 354, 717, N.Y.S 2d 88 (2000). In Casey, the Court of Appeals held that in this misdemeanor, information was satisfactory even though there may have been jurisdictional defects under CPL 100.40 in failing to set forth any non hearsay allegations. The Court of Appeals noted that the hearsay and non hearsay issue is waivable on appeal and must be set forth during the course of the trial if it is to receive Appellate consideration. A few years later in People v. Keizer, the Court of Appeals once again ruled on the sufficiency of non hearsay allegations in the accusatory instruments. In Keizer, (100 N.Y.S.2d 114, 760 N.Y.S.2d 720, (2003)), the court examined two situations, the first where the defendant had plead guilty to the charges and the second where the defendant plead guilty to a reduce charge following a plea bargaining conference. In both instances, the court noted that an Appellate argument of the hearsay or the non hearsay allegations of the accusatory instruments was waived following the plea of guilt, and it did not particularly matter if such allegations were brought forth even during the course of the trial proceedings.
In the recent case of People v. Kalin, 2009 N.Y.S. S.L.I.P.O.P. 2446 (March 31, 2009), the Court of Appeals clarified an earlier ruling under Matter of Jahron S. 79 N.Y.S. 2d 632 584 N.Y.S.2d 748 (1992). In Kalin, the court was satisfied had the officers we trained to identify heroin and marijuana as drugs and their specific packaging and other related experience provided them with the conclusion that they were illegal drugs under the appropriate provisions of the Penal Law. It should be noted that in Kalin the defendant had also plead guilty. However, the Court of Appeals distinguished another more recent case in People v. Jones 9 N.Y.3d 848 N.Y.S.2d 600 (2007) on the grounds that action should have been dismissed because of particular element had been completely left out of the accusatory instrument.
In conclusion, it is clear that the service of a summons and appearance ticket or warrant of arrest may or may not have an impact on a criminal case in the long term or the short term. In addition, the sufficiency of an accusatory instrument is always on the table and should be reviewed almost immediately after the attorney is either assigned or chooses to represent the particular defendant. An omission of either of these initial considerations would clearly be detrimental to the defendant and also might result in an early and successful defense of the criminal charge.
Robert G. Bogle is a Valley Stream Village Justice and Long Beach City Court Judge. He is the Chief Court Attorney in the Nassau County and is the author of a numerous law books available at West Publishing
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