The defendant, charged with Harassment in the Second Degree in violation of Penal Law §240.26(1), previously moved, pursuant to NY Criminal Procedure Law §170.30(1)(e), to dismiss the accusatory instrument against him, arguing that dismissal was statutorily mandated since the People had failed to ready the case for trial within the "speedy trial" time provided by CPL §30.30(1)(d).

The determinative issue, the defendant and the People at that time agreed, was whether the time between the issuance by the court (Chaikin, J.), of a summons requiring the defendant's appearance for arraignment, and the date that the defendant was required by the summons to appear, was statutorily excluded from the People's speedy trial time. If so, the People's speedy trial time would not have run; if not, then the speedy trial time would have expired and, conceded the People, dismissal would be mandated.

This Court, in People v. Hauben, 11 Misc 3d 1026, 810 N.Y.S.2d 649 (Dist. Ct., Nassau Co. 2006), determined that the time was not excludeable, and that dismissal was therefore mandated. This Court relied upon (1) the statutory language omitting the time subsequent to [*2]issuance of a summons from the exclusive list of periods to be excluded from the computation of speedy trial time, i.e., CPL §30.30(4)(i); (2) the construction of the statute by the official commentator, Preiser, Practice Commentary, CPL §30.30 (McKinney's) (2003 Main Volume); and (3) the precedent established by People v.

Perangelo, Docket No. 17703/05 (Dec. 16, 2005) (Dist. Ct., Nassau Co.) (O'Brien, J.).

The People now move for reargument. Their basis for doing so is a novel asserted statutory construction. The People assert that the summons at issue is in fact an "appearance ticket" within the meaning of CPL §150.10, and that, therefore, although the time period subsequent to its issuance might not be excluded from speedy trial time by CPL §30.30(4)(i), the criminal action is nevertheless deemed by CPL §30.30(5)(b) not to have commenced, and the speedy trial time therefore not to have begun running, until the defendant's appearance, so that the motion to dismiss should, on reargument, be denied.

The People concede that they failed to raise this statutory interpretation in their original opposition to the motion. The only argument interposed by them at that time was directed to the issue of "exclusion," not "commencement." The People concede that their argument would require a determination by this Court that the court in Perangelo, the official commentary by Preiser, and additional courts (including the New York Court of Appeals) and commentators, have all misconstrued the statute. And the People concede that their asserted statutory construction has been adopted by only one court, in a decision

made without extensive analysis and subsequently reversed on reargument.

Despite this, since the People's position is a non-frivolous one, well reasoned and firmly grounded in a good faith close reading and analysis of the statutory text as written, this Court is bound to consider and review this legal issue on its merits.

CPL §1.20(17) provides that "[a] criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court. . . ." It is upon commencement that speedy trial time begins to run.

As observed in this Court's prior decision in the instant case, 11 Misc 3d at 1029, 810 N.Y.S.2d at 651:

CPL §120.20 provides that where a criminal action is commenced by the filing of an accusatory instrument in a local criminal court, there are two separate alternatives to the issuance of a warrant of arrest by the court for securing the defendant's appearance. See, Preiser, Practice Commentary, McKinney's NY CPL §120.20 (2004 Main Volume). The two alternatives are: (1) the issuance by the court itself of a "summons," rather than a "warrant" (a summons being an instrument directed to the defendant, commanding him to appear in court [see, CPL §130.10], andthe warrant being an instrument directed to law [*3]enforcement, commanding them to take custody of the defendant and bring him to court); and (2) the authorization by the court of the district attorney to direct the defendant to appear.

CPL §130.10(1) provides that "[a] summons is a process issued by a local criminal court directing a defendant designated in an information, a prosecutor's information, a felony complaint or a misdemeanor complaint filed with such court. . . to appear before it at a designated future time in connection with such accusatory instrument."

CPL §30.30(4)(i) does not provide for the exclusion from the People's speedy trial time of any time prior to the appearance commanded by a summons. CPL §30.30(4)(i) does provide, however, that in computing the speedy trial time chargeable to the People, there must be excluded "the period prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been [not summoned by the court, but, rather], directed to appear by the district attorney . . . ."

Preiser, Practice Commentary, CPL §30.30 (McKinney's) (2003 Main Volume), in reflecting on this, states that CPL §30.30(4)(i) "was added in 1993 to complement expanded authority granted that year to both local criminal and superior courts for two new alternatives to an arrest warrant to secure defendant's appearance for arraignments. . . . The exclusion in paragraph [i] applies only to [the direction by the district attorney to appear]. The rationale for this exclusion is not immediately apparent and none was furnished in the sponsor's memorandum. . . . I would hazard a guess that since the period between the filing of the accusatory instrument and arraignment is not excluded when the court issues a warrant or summons, the provision was inserted to provide an incentive for the district attorney to request the court to use the least onerous method of securing defendant's appearance." See also, Marks, 7 NY Prac., New York Pretrial Criminal Procedure §9:45 (2005) ("The effect of this amendment is to encourage the use of this new device as the least intrusive method for procuring the defendant's appearance . . . . Only by use of this alternative to the arrest warrant or summons will the prosecutor be assured of avoiding being charged with post-accusatory, pre-arraignment delay.").

The People, however, now suggest that the only reason that the time prior

to the defendant's actual appearance for arraignment in a situation in which the defendant has been served with a summons was not included within the exclusion of CPL

§30.30(4)(i) is that it was unnecessary to do so, the action having statutorily not yet commenced, because a "summons" is really an "appearance ticket."

CPL §150.10(1) provides that "[a]n appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense." [*4]

CPL §150.10(1) continues, "[a] notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title."

CPL §30.30(5)(b) provides that "where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket."

The People contend that the term "other public servant" includes a judge, and that therefore a summons signed by one qualifies as an "appearance ticket."

"Although the term public servant' is not defined in the CPL, the Legislature's definition of that term in the Penal Law is instructive. Penal Law 10.00(1). . . ." People v. Whitmore, 12 AD3d 845, 847 (3rd Dep't 2004), lv. to app. den'd, 4 NY3d 892 (2005). Under this definition, it would appear that the People may be literally correct.

However, as observed in People v. Bilus, 10 Misc 3d 761, 766 (Dist. Ct., Nassau Co. 2005) (DeStefano, J.) (concluding that the term "public servant" did not, for purposes or a foreign government), "it is also axiomatic that all parts of a statute must be harmonized with each other and with the general purpose of the whole statute (Statutes 98). To interpret public servant' [in the manner argued by the People] would ignore the other parts of the statute and would not comport with the statute's general purpose." The question remains whether this would also be the case in construing this term for purposes of the statute at bar.

As a matter of straightforward statutory construction, the People's interpretation proves too much. It suffers from the fact that under its broad reading of the definition of "appearance ticket," a direction to appear issued by a district attorney (also, under this reading, an "other public servant") would also qualify as an appearance ticket, meaning that a criminal action would not "commence" until arraignment where this procedure was used. This would make the statutory provision for the "exclusion" of the time before arraignment in such a circumstance, pursuant to CPL §30.30(4)(i), unnecessary. The argument would be identical to that which the People assert explains the absence of provision in CPL §30.30(4)(i) for excluding the time prior to the return date of summonses, and would render that section meaningless.

Moreover, a summons is merely "issued" by the court, while an appearance ticket must statutorily be "issued and subscribed" by the authorized individual. "Subscribe" has been defined as "to attest by signing" (Dictionary by Merriam-Webster), and a "subscriber" one who signs "for the purpose . . . of adopting [a document's] terms as his own expression" (Black's Law Dictionary, p. 1596 [4th ed.]). Both definitions imply some [*5]degree of substantive vouching alien to a judge's function..

Informal Opinion No. 93-90 of the Attorney General of the State of New York, 1993 WL 255339 (N.Y.A.G.), addressing, inter alia, CPL §150.10, interprets "other public servants" as referring only to law enforcement personnel, opining that "[t]he legislative body of a local government may authorize the issuance of an appearance ticket by a public servant who is authorized or required to enforce any local regulations relating to parking, licensing of occupations or businesses, fire inspection and safety, health and sanitation, and building, zoning and planning. . . . [P]rior to the court date, the public official who issued the appearance ticket must file an accusatory instrument ." A judge is not a law enforcement official, and is not charged with filing an accusatory instrument with the criminal court.

People v. Raglin, 175 Misc 2d 1003, 1004, reargument granted on other grounds, 175 Misc 2d 1009 (Crim. Ct., Queens Co. 1998) (Gavrin, J.), appears to construe the statutes in the manner asserted by the People in the instant case. "A summons does not commence a criminal action, but merely mandates a defendant's appearance in response thereto, much in the same manner as a Desk Appearance Ticket (See CPL §130.10). Accordingly, the speedy trial time does not begin to run until the defendant's appearance and arraignment in court. (CPL §30.30[5][b])."

However, as, as if anticipating (and rejecting) the People's argument in the instant case, Preiser, Practice Commentary, CPL §150.10 (McKinney's) (2004 Main Volume), states that "an instrument designated by statute as a summons' may or may not be an

appearance ticket. If the summons is issued pursuant to CPL Article 130, it obviously is not [emphasis in original] an appearance ticket, as quickly can be determined by comparing the definition in CPL §130.10 with the definition in the present section."

Preiser reconciles the statutory reference in CPL §150.10 to a "summons" potentially constituting an "appearance ticket" by explaining that, "another type of summons may well be an appearance ticket - e.g., the traffic summons (see Vehicle & Traffic Law, 207). Thus, the question of whether an instrument labeled summons', for example, is for CPL purposes a summons or an appearance ticket depends upon the statute that describes it and authorizes its issuance."

One court, also explicitly rejecting the argument here advanced by the People, has gone into even greater detail in attempting to explain the distinction. In People v. Eckert, 117 Misc 2d 504, 505-506 (City Ct., Syracuse 1983) (Mariani, J.), the court held:

The People contend that a summons and an appearance ticket are so similar in substance that the criminal action is deemed commenced for speedy trial purposes when a [*6]defendant first appears in response to the summons . . . . We cannot agree with this time computation and designation of the date of commencement.

Initially, we note the very basic concept of criminal statutory construction that, had the legislature sought to include the summons situation within the scheme established by the

amendment to CPL §30.30(5)(b), they would have specifically done so.

Secondly, we note critical distinctions between a criminal summons and an appearance ticket which we feel preclude the People's contention in a §30.30 discussion. A criminal summons may be "issued only by a court and only upon the basis of an information or complaint which has been lodged with such court," CPL §130.10 practice commentaries, McKinney's, 1981. An appearance ticket, on the other hand, is issued without court directive and prior to the filing of an Information. Furthermore, an appearance ticket is served upon a defendant with its issuance; whereas a criminal summons as defined in CPL §130.10 is served upon the defendant at a later date after the Court subscribes the same.

We, therefore, encounter none of the potential notice and due diligence in service issues associated with CPL §30.30 time constraints [citations omitted].

To afford the People the benefit of freedom from speedy trial constraints in the case of a summons issued against an unknowing defendant would, based on Eckert's analysis, open up inquiry into whether, when, and how the summons had in fact been served, in contrast to an "appearance ticket," which because served by law enforcement at the scene poses none of those issues. Accord, People v. Griffen, 141 Misc 2d 627, 629 (Crim. Ct., Queens Co. 1988) (Glass, J.) ("[W]hen an action is commenced with the filing of an accusatory instrument and a summons is issued pursuant to CPL §130.10, the time under CPL §30.30 begins to run when the accusatory instrument is filed."); 18 West's McKinney's Forms Criminal Procedure Law §130:1.

The analyses of Eckert and Preiser were implicitly adopted by the Court of Appeals in People v. Smietna, 98 NY2d 336, 340 (2002), where the Court limited the concept of "appearance tickets" for these purposes to those instruments issued, on the scene, by law enforcement agents:

CPL 30.30 time periods . . . generally run from the date of filing of the accusatory instrument (see CPL §30.30[1]; 100.05), except where the police issue an appearance ticket, in which case the period is calculated from the date a defendant first appears in criminal court (see CPL §30.30[5][b]; People v. Stirrup, 91 NY2d 434 [1998]).

In Rosario v. Amalgamated Ladies' Garment Cutters' Union, 605 F.2d 1228, 1250 (2nd Cir. 1979), cited by Eckert, supra, 117 Misc 2d at 506, the Second Circuit similarly determined that "the difference between a summons and an Appearance Ticket is that the former is issued by the court and the latter by the police."

[*7]Smietna represents the final word to date on this issue.

In Smietna, the Court did exclude from the People's speedy trial time a period subsequent to the filing of the accusatory instrument, but prior to the date set in the summons for the defendant's initial appearance for arraignment. In so doing, the Court stated that "CPL §30.30 requires that the People diligently pursue prosecution of a criminal defendant; it was not intended to create a trap requiring dismissal of accusatory instruments in cases where the People unaware of the charges were genuinely unable to prepare for trial and timely announce readiness within the operative time frame." 98 NY2d at 342. This concern regarding the statute's potential application in a manner which would achieve an unintended result may be argued to be just as apt on the instant facts.

However, Smietna excluded the time not by adopting the interpretation urged by the People here, but, rather, by utilizing the "exceptional circumstances" provision of

CPL §30.30(4)(g). In so doing, the Court made it clear that those "exceptional circumstances" were strictly limited to the situation there presented, i.e., where the accusatory instrument had been prepared and filed by the law enforcement agency, and the People were wholly unaware of the pendency of the criminal charges until the return date of the summons. This is not the situation in the instant case, where there may have been ministerial error and miscalculation, but where such was within the control of the People, and was of such a nature as may be addressed successfully, and corrected, in the future.

Indeed, the Smietna decision was delivered by a divided Court, with the dissent, written by the Chief Judge, objecting to the use of the "exceptional circumstances" doctrine even on those apparently compelling facts: "The Court should not recognize an exceptional circumstance based on the District Attorney's own conceded policy of remaining unaware, until arraignment, of accusatory instruments filed by police. . . . In a situation such as this, where, as a result of their own inaction, the People had less time to prosecute than they thought, they should not benefit from an exceptional circumstance." 98 NY2d at 343 - 344.

In light of the holdings in Smietna, Eckert, Griffen, and Perangelo (all of which, the People concede, stand in opposition to the lone decision in Raglin), the commentary by Preiser and others, and a close review of all the statutory language, this Court grants reargument, but on reargument is constrained, and persuaded, to adhere to its original decision dismissing this criminal action.

So ordered.

DISTRICT COURT JUDGE

Dated: June 20, 2006