The People's attempt to replace the felony complaint in this action with a misdemeanor information on the day speedy trial time was set to expire cannot survive review. The felony complaint consequently still stands. As a result, defendant's speedy trial motion and motion to dismiss for lack of geographical jurisdiction are not properly before the court.

The court arraigned the defendant on July 20, 2021 after the People filed a complaint charging her with a single felony count of Grand Larceny in the Third Degree (Penal Law § 155.35[1]), and the misdemeanor offenses of Welfare Fraud in the Fifth Degree (Penal Law § 158.05) and Unlawful Use of a Credit Card, Debit Card or Public Benefit Card (Penal Law § 165.17).

The complaint contains a complex series of allegations designed to show that the defendant made purchases in excess of three-thousand dollars with the unauthorized use of another person's public benefits card.

The prosecution served and filed a series of documents off-calendar purporting to transition from a felony complaint to a misdemeanor information.

The third in a series of four certificates of readiness (COR) submitted over the course of two days for the first time included the statement that the People "are hereby dismissing Count 1 of the accusatory instrument (Grand Larceny in the Third Degree in violation of Penal Law [*2]155.35(1)), thereby reducing the felony complaint to a misdemeanor complaint comprising one count of Welfare Fraud in the Fifth Degree . . . and one count of Unlawful Use of Credit Card, Debit Card or Public Benefit Card. . . ." A copy of an e-mail submitted with the People's papers indicate that this version of their certificate of readiness was sent to defense counsel on January 20, 2022 at 4:18 p.m.

A second e-mail at 4:35 p.m. indicates that the People were forwarding to defense counsel a "superseding information" (a misdemeanor complaint accompanied by a supporting deposition), certificate of compliance, discovery list and certificate of readiness.

The misdemeanor complaint is dated January 20, 2022 and signed by the deponent at 3:45 p.m. that afternoon. The single supporting deposition submitted is dated the same day and is signed by Jessie Leung an investigator with the New York City Human Resources Administration. The complaint contains the two misdemeanor charges from the original accusatory instrument along with the same factual allegations.

The People assert that these filings were sufficient to proceed on the misdemeanor information without court review or approval. They argue in the first instance that they were not seeking the reduction of the felony charge but had achieved its outright dismissal by the statement to that effect in the COR. Their dismissal of the felony count they claim renders unnecessary the court inquiry required by CPL 180.50 for a felony to misdemeanor reduction of a charge.

The court agrees that while the specific inquiry mandated by CPL 180.50(1) is not necessary under these circumstances, court review and approval of the dismissal of the felony count and decision to prosecute misdemeanors only is required.

The People may reduce a felony complaint to one charging misdemeanors only pursuant to CPL 180.50. This almost exclusively takes place during a court appearance on the People's application either for the purpose of having the defendant enter a guilty plea to a non-felony offense or "for all purposes" allowing the defendant to be prosecuted for misdemeanor charges only.

The statute delineates a specific procedure to be followed to effectuate the reduction which includes the court "upon consent of the district attorney, mak[ing] inquiry for the purpose of determining whether (a) the available facts and evidence relating to the conduct underlying the felony complaint provide a basis for charging the defendant with an offense other than a felony, and (b) if so, whether the charge should, in the manner prescribed in subdivision three, be reduced from one for a felony to one for a non-felony offense." CPL 180.50(1); see also People v. Bhagat, 63 Misc 3d 162(A) (App Term, 2d Dept, 2019)(filing misdemeanor information charging defendant with third-degree assault and Harassment in the Second Degree to replace a felony complaint charging the defendant with second-degree assault has no legal effect absent court inquiry pursuant to CPL 180.50[1]).

After this inquiry the court is required to make a finding as to whether it "is satisfied that there is reasonable cause to believe that the defendant committed an offense other than a felony" at which point the court "may order the indicated reduction." CPL 180.50(2). Where reasonable cause is absent to believe the "defendant committed a felony in addition to the non-felony [*3]offense in question, the court may as a matter of right order a reduction of the charge to one for the non-felony offense . . . " CPL 180.50(2)(a).

The felony complaint, however, in most circumstances contains allegations that provide reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense.

In that instance the court will "order a reduction of the charge to one for the non-felony offense only if (i) it is satisfied that such reduction is in the interest of justice, and (ii) the district attorney consents . . ." CPL 180.50(2)(b), with the court stating its finding on the record.

After or during this process the court is required to mark the court papers accordingly. Where a superseding information or complaint is served and filed, the court will cross out the felony complaint and usually add to it notations that a new accusatory instrument is filed. The court is then required to arraign the defendant on the new instrument. CPL 180.50(3)(d) ("Upon the filing of an information, a prosecutor's information or a misdemeanor complaint pursuant to this section, the court must dismiss the felony complaint from which such accusatory instrument is derived. It must then arraign the defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in section 170.10").

The court also can direct that an information be filed to replace the felony complaint. CPL 180.50 (3)(a)(i) and (3)(a)(ii).

In most cases, however, the court will accomplish the reduction or replacement by making notations on the felony complaint changing its title, indicating the reductions made to the count(s) affected, changing the penal law section and writing in the name(s) of the offense(s). CPL 180.50(3)(a)(iii)("A charge is 'reduced' from a felony to a non-felony offense . . . by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument, as follows: (a) If the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may: . . . (iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged").

The court also generally will date and initial the accusatory instrument on which the handwritten changes are made.

An analysis of these provisions along with the case law applying them demonstrates that court review and approval is necessary to effect the replacement of a felony complaint.

The People argue that the court inquiry, finding and approval for a reduction of a felony charge to a misdemeanor offense required by CPL 180.50 do not apply when the People act on their own and dismiss the felony count. Neither statute nor case law, however, support their position. See People v Thomas, 59 Misc 3d 64 (App Term, 1st Dept, 2018)("if the people wanted to expeditiously move to dismiss (or reduce) the felony charge and declare their readiness on the remaining charges, thereby stopping the speedy trial clock the People could have easily advanced the case or made an ex parte application . . . "); People v Thomas, 107 Misc 2d 947 (Suffolk Dist Ct 1981)("There is no provision in the Criminal Procedure Law allowing the District Attorney on his own volition without any direction from the court to replace a felony [*4]complaint with a prosecutor's information"); cf. People v Tebeje, 161 Misc 2d 440 (Crim Ct Bronx County 1994)("The People attempted to circumvent the need for a corroborating affidavit by stating on the statement of readiness that the second count of assault in the third degree was dismissed. . . . The People do not have the authority to merely state that a misdemeanor count is dismissed. . . . In order to dismiss a misdemeanor count, the People must make a formal motion in open court to dismiss a particular count. Upon such motion by the People, it is the court which dismisses that count").

The cases the prosecution relies on where the court's failure to make a CPL 180.50(1) inquiry did not prevent a reduction or replacement of the felony complaint are inapplicable. In those instances the dismissal of the felony count took place on the record and as part of a necessary first step to the defendant entering a guilty plea. In People v Johnson, 5 NY3d 752 (2005) the prosecution moved in open court to dismiss the only felony charge in the accusatory instrument thereby leaving a complaint containing two misdemeanor offenses. The defendant then plead guilty. Although the judge dismissed the felony charge there was no CPL 180.50(1) inquiry or reason provided for its dismissal. The decision found that the absence of a 180.50(1) inquiry did not nullify the reduction since the basis and reasons for it were clear from the record as was the court's action in dismissing the count.

Although the decision declares that a 180.50(1) inquiry was not required it does not address what court participation is necessary to effect the transformation of a felony complaint to a misdemeanor complaint or information. The guidance was not required under those circumstances since the proceedings took place on the record with the defendant taking a guilty plea to a misdemeanor charge. The decision moreover states that the prosecution moved to dismiss the felony charge, leaving only the misdemeanors. Further, court participation was evident when it granted the application and dismissed the felony charge.

Similarly, the other cases the People rely on all took place in open court on the record. See People v Williams, 63 Misc 3d 130(A) (App Term, 2d Dept, 2019)("Although the Justice Court did not expressly state that the felony complaint was dismissed, it was effectively dismissed, as the record indicates that defense counsel stated that defendant's guilty plea to obstructing governmental administration would be in full satisfaction of the previously filed felony charge, to which statement the court acquiesced"); People v Robinson, 60 Misc 3d 133(A)(App Term, 2d Dept, 2018)("While the City Court did not expressly state that the felony complaint was 'dismissed,' the record indicates that the prosecutor stated to the court that the guilty plea to menacing in the second degree was in full satisfaction of all of the charges previously filed and that no charges other than the one set forth in the new accusatory instrument was pending, to which the court acquiesced").

The court in these cases either explicitly or implicitly granted the People's application to dismiss the felony count. The decisions also include a presumptive finding that there was a basis to proceed on misdemeanor charges and that if a felony count was still supported by reasonable cause, the court implicitly was "satisfied that such reduction [was] in the interest of justice." CPL 180.50(2)(b).

The requirement of court review of a reduction or replacement of a felony complaint follows from these decisions. It is consistent as well with other statutory provisions delineating the courts power to add or dismiss charges.

For instance, statutes governing the replacement or superseding of an offense with a subsequent accusatory instrument "upon the defendant's arraignment upon the latter [*5][information], the count of the first instrument charging such offense must be dismissed by the court . . . ". CPL 100.50(1)(emphasis added). See also CPL 100.50(2)(providing that where a prosecutor's information is filed to replace an existing information that original information is superseded by the prosecutor's information and is deemed dismissed upon the defendant's arraignment on the prosecutor's information).

The provisions of CPL 100.45 state that "the court may, upon application of the people . . . order the amendment of the accusatory part of such information by addition of a count charging an offense supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it." (emphasis added).

Also missing from the process engaged in by the prosecution here is compliance with CPL 170.10 which requires the defendant's presence and arraignment where there is "the filing with a local criminal court of an information." See also CPL 170.65 (mandating, absent a defense waiver, that a misdemeanor complaint be replaced by an information and that the defendant must be arraigned on that information); cf. People v Robinson, 60 Misc 3d 133(A)(App Term, 2d Dept, 2018)("While defendant further contends that the City Court should have arraigned her upon the filing of the new accusatory instrument and informed her of her rights in the manner provided for in CPL 170.10, under the circumstances presented, this claim of procedural error was forfeited by her guilty plea").

All of these statutory provisions require court action before a prosecution can proceed on an information.

The People have the discretion to determine which charges to bring against the accused and those they will present at trial. This is not an unbridled authority. As noted with respect to a 180.50 reduction, the court ultimately will have to decide whether the interests of justice warrant granting the prosecution's application to reduce a felony count to a misdemeanor offense where the allegations support a felony charge. It follows that a similar finding is required when the prosecution decides to dismiss a felony count outright rather than reduce it to a misdemeanor.

In dismissing the sole felony count off-calendar in the instant matter the People side-step making the application to the court. They also deprived the court the opportunity to determine if there was evidence sufficient to support prosecuting non-felony offenses. Critically as well is that the court was unable to make a finding that the interests of justice would be served by a misdemeanor prosecution where the facts support the felony charge.

It is worth noting that the misdemeanor complaint and felony complaint the People sought to replace contain identical factual allegations. These allegations make out the elements of the felony larceny charge the People attempted to dismiss. The dismissal of the felony count though supported by legally sufficient evidence may indeed serve the interests of justice. But that decision ultimately was for the court to make.

The court finds that the People cannot replace a felony complaint by dismissing the felony count(s) of that accusatory instrument off-calendar and that it can do so only upon application to the court.

The People's actions here did not effect a change in the accusatory instrument commencing this criminal case. The felony complaint therefore still stands.

The court would note that this ruling renders the People out of speedy trial time. Their efforts were on the last day they could certify trial readiness. The time to the next court date thereafter is chargeable to the People and puts them over the limit. Moreover, contrary to their claim, partial conversion or readiness are no longer available under the changes made to the [*6]applicable statutes effective January 1, 2020. In any event, the People would not qualify for the exception even if available as the papers submitted still leave the accusatory instrument rife with unconverted hearsay.

These observations do not constitute a formal ruling but are offered as an advisory to the parties moving forward. In light of the case still being prosecuted on a felony complaint defendant's motions to dismiss pursuant to CPL 30.30 and his geographical challenge to jurisdiction are not properly before the court. See Morgenthau v Roberts, 65 NY2d 749 (1985); see also CPL 180.85 and CPL 210.20.

The accusatory instrument containing the felony count of Grand Larceny in the Third Degree originally filed in this action at defendant's arraignment has not been legally replaced with a misdemeanor complaint or information and therefore proceedings will continue on that felony complaint.

Defendant's motions to dismiss, accordingly, are not properly before the court.

This shall constitute the decision and order of this court.