People v. Sommersell

In People v. Sommersell, 166 Misc.2d 774, ( Sup. Ct., App. Term, 2nd Dept.)(1995) the defendant was initially charged in a felony complaint. The felony charge was later dismissed and the accusatory instrument was converted to a misdemeanor complaint which charged defendant with two class A misdemeanors and a violation. Subsequently, one of the class A misdemeanors was dismissed and the other was reduced to a class B misdemeanor. The issue before the court was whether the People were required to be ready within 90 or 60 days from dismissal of the felony charge and conversion of the instrument to a misdemeanor complaint. Because the criminal action was commenced with the filing of a felony complaint and later reduced to a misdemeanor complaint, the court began its analysis with CPL 30.30(5)(c). CPL 30.30(5)(c) states in relevant part that, "where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180... the period applicable... must be the period applicable to the charges in the new accusatory instrument...". The court determined that CPL 30.30(5)(c) does not apply to reduction of an A misdemeanor to a B misdemeanor so as to modify the speedy trial time involved, and further noted that the Legislature failed to specifically address misdemeanor reductions. It held that the Legislature's failure to include misdemeanor reductions within the scope of CPL 30.30(5)(c) must be construed as an indication that such exclusion was intended. (Sommersell, at 776.) The trial court found that 66 days were chargeable to the People and dismissed the information for denial of defendant's statutory right to a speedy trial. Reversing that order, the Appellate Term first noted that CPL 30.30 (5) (c) does not apply to reduction of an A misdemeanor to a B misdemeanor so as to modify the speedy trial time period from 90 days to 60 days. The court found that the failure of the Legislature to specifically address such reduction as evidencing intent to exclude that situation. Accordingly, the court found itself barred from giving a statute a reading which would include matters not contemplated by the Legislature in its enactment of the statute. ( People v Sommersell, supra, at 775, 776.) The court concluded its analysis by finding that since the felony charge was "reduced" within the meaning of CPL 180.50 to a nonfelony offense charging a class A misdemeanor, CPL 30.30 (5) (c) applies for the purpose of modifying the original speedy trial time period.