Criminal Court of the City of New York, Bronx County, August 2, 2022

The Legal Aid Society (Ilana Kornfeld of counsel) for defendant.

Darcel D. Clark, District Attorney (John Longo of counsel), for plaintiff.

The People commenced this case by filing a misdemeanor complaint, an accusatory instrument that contained unsworn hearsay allegations. Eighty-eight days later, off calendar, the People filed and served a "superseding information" and a notice of readiness. However, this purported superseding information contained two counts that were not yet "converted"—i.e., those counts still relied upon unsworn hearsay allegations. In their notice of readiness, the People announced that they were "moving to dismiss" the unconverted counts. In the same notice, they simultaneously claimed to "certify" that the unconverted counts "have been dismissed."

The defense has now filed a CPL 30.30 motion to dismiss, arguing that the People's only statement of readiness before the 90-day speedy-trial deadline was invalid. They make two arguments. First, the "superseding information" was actually a {**76 Misc 3d at 628}superseding complaint, which is an unauthorized instrument that cannot support a valid statement of readiness. Second, even if the court accepts the partially converted "superseding information," the People may not validly state ready on a partially converted instrument.

The court agrees with both arguments. The motion is granted.

On October 1, 2021, at Mr. Saavedra's arraignment, the People filed a misdemeanor complaint against him. That complaint charged him with two counts of third-degree assault and two counts of second-degree harassment. The complaint was sworn by a police officer, who wrote that he was "informed" by two unsworn witnesses: Mr. Morelos and Mr. Briones. Each unsworn witness alleged facts supporting one count of each of the charged offenses. The court adjourned the case to November 9, 2021, for the People to "convert" the accusatory instrument, file a certificate of discovery compliance, and state ready for trial. On November 9, 2021, the People had none of those documents and did not state ready. The court adjourned the case for the same purposes to January 11, 2022.

Off-calendar, on December 28, 2021, the People filed and served what they claimed to be a superseding information, a certificate of discovery compliance, and a notice of readiness. Like the complaint before it, this new accusatory instrument charged Mr. Saavedra with two counts of third-degree assault and two counts of second-degree harassment. However, unlike the complaint before it, the new instrument was sworn by Mr. Briones and alleged sworn facts to support two of the charged counts. Still, Mr. Briones wrote that he was "informed" by hearsay allegations from Mr. Morelos regarding the other two counts. In sum, the document contained sworn allegations to support two of the counts, but not the two others.

The People's accompanying off-calendar December 28, 2021 notice of readiness contained three statements. First, it said, "the People of the State of New York are ready for trial in the above-mentioned case." Second, it said,

"the People of the State of New York are moving to dismiss one count of Assault in the third degree and one count of Harassment in the second degree for informant [Mr.] Morelos and certify that all remaining counts charged in the accusatory instrument{**76 Misc 3d at 629} meet the requirements of sections 100.15 and 100.40 of the Criminal Procedure Law and, if applicable, those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed."

Third, it said, "the People of the State of New York request that this matter be advanced to the next date the court is available to make its record inquiry of the People's readiness as set forth in CPL § 30.30 (5)."

On January 11, 2022, the defense challenged the People's statement of readiness and requested this motion schedule.

The Criminal Procedure Law provides for various accusatory instruments with which the People can commence an action in local criminal court. Those are an information, a simplified information, a prosecutor's information, a felony complaint, and a misdemeanor complaint. (CPL 100.05.) A misdemeanor complaint may charge a person with offenses upon hearsay allegations. (See CPL 100.40 [4].) In contrast, an information requires "[n]on-hearsay allegations" to establish the charged offenses. (CPL 100.40 [1] [c].) The Criminal Procedure Law allows the People to file a superseding instrument to replace a misdemeanor complaint. (See CPL 170.65, 100.50.)

Courts have long split over whether the Criminal Procedure Law allows the People to supersede a misdemeanor complaint with an instrument that itself also contains unconverted counts. Several courts have held that it does not. (E.g. People v Diaz, 63 Misc 3d 1211[A], 2019 NY Slip Op 50465[U], *2 [Crim Ct, Bronx County 2019, Ally, J.]; People v Simmons, 62 Misc 3d 1205[A], 2018 NY Slip Op 51955[U], *3 [Crim Ct, Kings County 2018, Petersen, J.]; People v Severino, 47 Misc 3d 1229[A], 2015 NY Slip Op 50891[U], *2-3 [Crim Ct, NY County 2015, Statsinger, J.]; People v Gibbs, 35 Misc 3d 1244[A], 2012 NY Slip Op 51092[U], *2 [Sup Ct, Bronx County 2012, Fabrizio, J.].) Others have held that it does. (E.g. People v Rivera, 41 Misc 3d 1205[A], 2013 NY Slip Op 51580[U], *3 n [Crim Ct, Bronx County 2013, Wilson, J.]; People v Mezar, 40 Misc 3d 1240[A], 2013 NY Slip Op 51516[U], *1-2 [Crim Ct, Kings County 2013, Gerstein, J.]; People v Cameron, 25 Misc 3d 1230[A], 2009 NY Slip Op 52345[U], *4 [Crim Ct, Kings County 2009, Kalish, J.].)

[1] This court agrees with those cases holding that the Criminal Procedure Law only allows the People to supersede a{**76 Misc 3d at 630} complaint with a fully converted information. A misdemeanor complaint "must" be supplemented by a supporting deposition or "replaced by an information." (CPL 170.65 [1].) An "information," distinct from a complaint, requires "[n]on-hearsay" allegations sufficient to establish the offenses. (CPL 100.40 [1] [c].) Nowhere in the Criminal [*3]Procedure Law does any provision allow a misdemeanor complaint to replace another misdemeanor complaint. A misdemeanor complaint may only be filed to commence an action—it cannot be filed once an action has already been commenced. (See CPL 100.05, 170.65.)

The cases that accept misdemeanor complaints as superseding instruments are in error. They improperly conflate the "partial conversion" doctrine with the separate question of whether such instruments were valid filings in the first place. When those cases were decided, the partial conversion doctrine allowed the People to state ready for trial on converted counts while remaining not ready on unconverted counts. (See People v Brooks, 190 Misc 2d 247, 249 [App Term, 1st Dept 2001].) However, this doctrine never concerned what instruments could supersede a misdemeanor complaint. (Gibbs, 2012 NY Slip Op 51092[U], *2.) Instead, it only concerned whether the People could partially convert counts on a complaint that was already filed. (Id.)

Here, the People's superseding instrument contained hearsay and was therefore a misdemeanor complaint that could not and did not replace the first misdemeanor complaint. As a result, "the People's attempt to supersede the misdemeanor [complaint] with an accusatory instrument containing uncorroborated hearsay, another misdemeanor complaint, is a nullity." (Id. [internal quotation marks omitted]; see also Severino, 2015 NY Slip Op 50891[U], *3 ["Thus, while the issue arises infrequently, superseding complaints are generally dismissed as a nullity"]; Diaz, 2019 NY Slip Op 50465[U], *2 ["The instrument . . . is thus a superseding complaint and therefore a nullity"].)

Therefore, the first misdemeanor complaint is the only valid accusatory instrument that was ever filed in this case. The People cannot state ready for trial on such an instrument. Accordingly, the CPL 30.30 clock ran from arraignments on October 1, 2021, to the date the defense requested a motion schedule, January 11, 2022. That is 102 days, more than the 90 days allowed by CPL 30.30 (1) (b). For this reason alone, the motion to dismiss must be granted.{**76 Misc 3d at 631}

But in addition, even if the People's superseding instrument were considered valid, it would not change the outcome of this speedy-trial motion. As of January 1, 2020, the People may only state ready for trial—which is what stops the speedy-trial clock—if they first fully convert the accusatory instrument to an information. (CPL 30.30 [5-a].) Indeed, before stating ready, the People must certify that all counts are converted and those counts that are not converted "have been dismissed." (Id.) This rule was "designed to abrogate" the older partial conversion doctrine "that authorized the prosecution to answer 'ready for trial' on an accusatory instrument . . . that had been converted to an information as to some but not all of the charges." (William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPL 30.30.)

[2] Here, when the People filed their off-calendar notice of readiness, the unconverted counts had not been dismissed. In that off-calendar notice, the People said they were "moving to dismiss" the unconverted counts and then unilaterally declared that those counts "have been dismissed." But "[t]he People do not have the authority to merely state that a misdemeanor count is dismissed." (People v Tebeje, 161 Misc 2d 440, 443 [Crim Ct, Bronx County 1994, Webber, J.].) "In order to dismiss a misdemeanor count, the People must make a formal motion in open court to dismiss a particular count." (Id.) "Upon such [a] motion by the People, it is the court which dismisses that count." (Id.) The People did not actually move to dismiss the unconverted counts until the open-court appearance on January 11, 2022.

Moreover, the People's declaration in their notice of readiness was not itself a motion. It was "not accompanied by any notice of motion, did not contain any return date, and the court did [*4]not set a motion schedule." (People v Thomas, 59 Misc 3d 64, 66 [App Term, 1st Dept 2018].) Therefore, "no motion was actually made" on that off-calendar date. (Id.) Moreover, while the People included a boilerplate "request" that the matter "be advanced to the next date the court is available to make its record inquiry of the People's readiness," the People never actually advanced the case and did not actually make a motion to dismiss the counts until January 11, 2022.

As a result, even if the court accepted the superseding instrument as valid, the People's statement of readiness would still have been invalid. It was made on an instrument containing unconverted counts that had not yet been dismissed. The declaration{**76 Misc 3d at 632} of a future motion to dismiss had no effect. The CPL 30.30 "statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." (People v Kendzia, 64 NY2d 331, 337 [1985].) Because these unconverted counts were not yet dismissed, the statement of readiness violated CPL 30.30 (5-a). The clock again would have run from arraignments on October 1, 2021, to the date the defense requested a motion schedule, January 11, 2022. That is, again, 102 days, more than the 90 days allowed by CPL 30.30 (1) (b). Under this reasoning, as well, the motion is granted.

The defense's remaining arguments and motions are moot.