People v. Braine

57 N.Y.S.3d 676 (Table)

The PEOPLE of the State of New York, Respondent,

v.Charles BRAINE, Appellant.

No. 2015–1744RICR.

Supreme Court, Appellate Term, Second Dept., 2d, 11 & 13 Judicial Dist.

April 28, 2017.

Jeffrey Lichtman, Esq., for appellant.

District Attorney Richmond County (Morrie I. Kleinbart, Esq.), for respondent.

PRESENT: MICHELLE WESTON, J.P., MARTIN M. SOLOMON, DAVID ELLIOT, JJ.

ORDERED that the judgment of conviction is affirmed.

This case arises from an altercation that occurred late on October 3, 2009 and during the early morning hours of October 4, 2009 at a restaurant in Staten Island. Defendant and a friend engaged in a physical fight with the victim, who was injured and required treatment at a hospital. On appeal, defendant claims that the People improperly filed an amended information and that he was denied his statutory right to a speedy trial.

In an accusatory instrument dated October 4, 2009, defendant and his codefendant were charged with assault in the third degree ( Penal Law § 120.00[1] ), attempted assault in the third degree ( Penal Law §§ 110.00, 120.00[1] ), and harassment in the second degree ( Penal Law § 240.26 [1 ] ). The factual part of the accusatory instrument alleged that a New York City Police Officer was told by the victim that, at about 11:50 p.m. on October 3, 2009, inside 1150 Clove Road in Staten Island:

"the defendants acted together and in concert in that both defendants did repeatedly strike [the victim] with closed fists and both defendants did choke [the victim] about the neck, and that [the codefendant] did bite [the victim] on the arm, causing injuries including but not limited to lacerations and bruising to [the victim's] face and a bruising and a bite mark to [the victim's] arm, as well as substantial pain, annoyance and alarm."

On October 6, 2009, the victim signed a supporting deposition, indicating that he had read the accusatory instrument, "and that the facts therein stated to be on information furnished by myself are true upon my personal knowledge." Thus, the October 4, 2009 accusatory instrument was converted to an information.

On or about March 2, 2012, defendant moved to dismiss the 2009 information on the ground that he had been denied his statutory right to a speedy trial pursuant to CPL 30.30. In a written decision dated May 4, 2012, the Criminal Court denied the motion.

On or about June 20, 2013, the People filed a new information, dated June 18, 2013, which was signed by the victim. The information charged defendant with only attempted assault in the third degree and harassment in the second degree. The factual part of the instrument alleged that, at approximately 11:40 p.m. on October 3, 2009, inside 1150 Clove Road in Staten Island:

"[D]efendants acted together and in concert to cause [the victim] physical injuries in that defendant Braine swung closed fists at [the victim's] head and body and [the codefendant] grabbed [the victim] around the neck and choked [the victim] while defendant Braine used his teeth to bite [the victim's] left bicep. [The victim] further states that said actions caused [him] physical injuries including but not limited to a concussion, a laceration to [his] left bicep, substantial pain to [his] head and arm, annoyance and alarm."

On or about July 9, 2013, defendant moved to dismiss the 2013 information, claiming that the People had violated CPL 100.45(3) in improperly amending the 2009 information in an attempt to conform the new information to what the victim was going to testify to at trial. In an affirmation in opposition to the motion, the People argued essentially that the 2013 instrument was a superseding information, not an amended information, and that, pursuant to CPL 100.50 and People v. Thomas (4 NY3d 143 [2005] ), a superseding information may be filed containing new factual allegations, as long as the allegations and charges stem from the same incident.

In a written decision and order dated March 14, 2014, the Criminal Court denied the motion to dismiss, finding "that the second information filed by the People [was] in fact a superseding information." The court stated that

"[t]he primary reason the Court finds that the information in question is a superseding information is because the new filing is sworn to by someone other than the deponent of the first complaint. A different deponent for a new information can, in the court's opinion, only signify that the [2013] information is a new and different instrument. An amendment' of an information can only be accomplished with the permission of the court and by court order ( C.P.L. § 100.45[1] ). The court has not and will not order such an amendment.... A superseding information on the other hand does not require what is, in essence, the consent of the court; the People have an absolute right pursuant to the statute ( C.P.L. § 100.50 ) to file a new information at anytime [sic] prior to the entry of a plea of guilty or the commencement of trial and ... a new superseding information may contain new factual allegations to support the charges."

Defendant contends on appeal that the People improperly filed an amended information. In People v. Thomas (4 NY3d at 145 ), the Court of Appeals stated:

"In this case we are asked to decide whether the People may file a new information that alleges additional facts or charges offenses that were not included in a previously filed information but stem from the same criminal transaction. We hold that the Criminal Procedure Law authorizes the filing of such an accusatory instrument."

CPL 100.50(1) authorizes the People to file "another information" before the "entry of a plea of guilty to or commencement of a trial of an information." The Court of Appeals elaborated that "the statute imposes no restrictions on the type of crimes that may be included in a new information" ( Thomas, 4 NY3d at 147 ). Defendant was charged in the 2009 information with assault in the third degree, attempted assault in the third degree, and harassment in the second degree. The 2013 information, in effect, dropped the assault charge, while the two other charges remained. Thus, the Criminal Court correctly denied the motion to dismiss the 2013 information.

Defendant further contends on appeal that his speedy trial motion should have been granted.

At the outset, we note that the People announced their readiness for trial on the record at the arraignment on October 14, 2009. The Criminal Court found that only 66 days were chargeable to the People. The following periods of time are at issue:

At a court appearance on May 19, 2010, the People answered not ready and requested a two-week adjournment. The case was adjourned to July 27, 2010. The court charged the People with 14 days of delay. At a court appearance on July 27, 2010, the People answered not ready for trial. The case was adjourned to September 30, 2010. The court indicated that the People would be charged with delay until they filed a certificate of readiness. The People filed an off-calendar certificate of readiness on July 30, 2010. The court charged the People with three days of delay.

At a court appearance on June 14, 2011, the People answered not ready for trial and asked for an adjournment. The case was adjourned to September 7, 2011. While not reflected in the transcript of June 14, 2012, in its decision on the motion, the court indicated that the People had requested a two-week adjournment. The court charged the People with 14 days of delay. On appeal, the People claim that this court is not bound by the People's original position on the motion, and that the 14 days should have been excluded because defendant was not present in court. Defendant's counsel indicated that defendant had been present "the whole morning" but that counsel had told defendant that he could "go" and, thus, defendant had not been present when the case had been called.

At a court appearance on September 7, 2011, the People answered not ready for trial and asked for a one-week adjournment. The case was adjourned to November 1, 2011. The court charged the People with seven days of delay. On appeal, the People claim that defendant's counsel was not present in court, as he was engaged in another court, and, thus, the seven days should have been...