In People v. Brooks, 190 Misc 2d 247, 736 N.Y.S.2d 823 (Appellate Term, 1st Dept. 2001), the complaint charged several crimes, including a count of Criminal Impersonation where the defendant was accused of impersonating a police officer.
At arraignment the court deemed the complaint an information and the People stated "Ready." The defense made no objection to either, and consented to an adjournment. On the next date the defense raised the argument, for the first time, that the allegation in connection with the Criminal Impersonation charge that the defendant "was not employed by the New York City Police Department" was not supported by any statement of anyone with firsthand knowledge of such a fact.
The court agreed and adjourned the matter for the People to file a superseding information. The People eventually dismissed the Criminal Impersonation charge, 102 days after the arraignment.
The defendant moved to dismiss under C.P.L. § 30.30, alleging that the People did not have a valid information until more than 90 days after arraignment, when the Criminal Impersonation charge was dismissed.
The court granted the motion.
The Appellate Term reversed, for several reasons.
One reason for reversal was that the defense had consented to the 31-day adjournment from arraignment to the next court date. Where a defendant consents to an adjournment, that time period is excluded from the People's time limit under C.P.L. § 30.30, even where the People do not yet have a jurisdictionally valid accusatory instrument. People v. Worley, 66 NY2d 523, 488 N.E.2d 1228, 498 N.Y.S.2d 116 (1985). It was for this reason that the dismissal in Brooks was reversed.
The Brooks court also mentioned other factors in support of its decision to reverse, however. One of these was that "defendant's hearsay challenge to the criminal impersonation count of the information should have been raised by way of a formal motion to dismiss that count . . . a procedure which, of course, would have triggered the motion practice exclusion of C.P.L. § 30.30 (4)(a)." Brooks at 249.
In Brooks, the defendant, while not immediately, did shortly after arraignment orally point out that an element of the Criminal Impersonation charge was based on conclusory language and not established by the firsthand knowledge of the deponent.
Thus, although he was in no way required to coach the People on what they needed to do to obtain a jurisdictionally sufficient information, he did signal early on that he was not conceding that the charge was made out.
He then made that argument in writing in support of his 30.30 motion, so his challenges to the sufficiency of that count were in writing before the motion court.
The Appellate Term's reasoning- that People's obligation to obtain a sufficient information within the 30.30 window is not enforceable unless defendant makes a written motion to enforce it, which written motion will alleviate the People from having to obtain a sufficient information during the period that the motion is pending- is Catch 22, circular reasoning.
The Brooks Court held that "Any perceived pleading defect relating to the subsequently dismissed criminal impersonation charge did not serve to vitiate the People's otherwise valid readiness statement relating to the properly pleaded weapon possession and satellite charges that undisputedly rested entirely on nonhearsay allegations" (Brooks at 249.)