Criminal Court of the City of New York, Queens County, April 22, 2022

Queens Defenders (Kim Barr of counsel) for defendant.

Melinda Katz, District Attorney, Queens (Audra Beerman of counsel), for plaintiff.

Under New York's reform laws that were enacted in 2020, a statement of readiness on an accusatory instrument is not valid unless the People certify that all counts charged in the information meet the requirements of Criminal Procedure Law §§ 100.15 and 100.40 and that any counts not meeting those requirements have been dismissed. In this case, the novel question before the court is whether a duplicitous count invalidates the People's CPL 30.30 (5-a) certification resulting in time being charged to the prosecution under the speedy trial statute. This court finds that it does. Inasmuch as a duplicitous count fails to comply with CPL 100.15, an accusatory instrument that contains such a count prevents the People from filing a valid statement of readiness and therefore speedy trial time is charged to them. Accordingly, and for the reasons that follow, defendant's motion to dismiss the accusatory instrument is granted.

Defendant is charged with criminal contempt in the second degree (Penal Law § 215.50 [3]) and aggravated harassment in the second degree (Penal Law § 240.30 [1]). The complaint alleges, in sum and substance, that between September 21, 2021, at 9:10 a.m. and October 6, 2021, at 2:40 p.m., the complainant received multiple text messages from defendant, who was her husband. In the text messages, defendant demanded that the complainant pay him weekly to stay married to him and threatened to report her to immigration and post her nude photographs online if she failed to pay him. The complaint further alleges that defendant commented on the complainant's Facebook post. It also alleges that he sent her multiple messages{**75 Misc 3d at 638} on the "messenger" application. Next, the complaint alleges that the deponent police officer had reviewed an order of protection that the Honorable Judge Titus of the Kings County Family Court issued on September 16, 2021, on behalf of the complainant, that was in effect until November 22, 2021. The order provided, among other things, that defendant was to stay away from the complainant and not have any communication or contact with her. The complaint further alleges that a statement of personal service indicated that defendant was personally served with the order of protection on September 16, 2021.

Defendant was arraigned on October 9, 2021.

On December 3, 2021, the People filed and served a certificate of compliance, a supporting deposition signed by the complainant, and a statement of readiness. On December 10, 2021, the People filed and served a certificate pursuant to CPL 30.30 (5-a), in which they certified that all counts contained in the accusatory instrument complied with CPL 100.15 and 100.40, and that any counts not meeting those requirements had been dismissed.

Defendant claims that the count of criminal contempt in the second degree is duplicitous because it pertains to more than one distinct act, in violation of CPL 200.30 (1) and 200.50 (3).^[FN*]

The People contend, however, that the counts are not duplicitous because the law prohibiting duplicitous counts applies only to indictments, not misdemeanor complaints. The People assert that, unlike an indictment, they can amend the misdemeanor complaint before the case goes to trial, thereby eliminating any duplicity in the counts.

On January 1, 2020, the new discovery article 245 of the Criminal Procedure Law took effect, with its concomitant imposition of a statutory definition for the People's readiness for trial pursuant to CPL 30.30. Newly promulgated CPL 30.30 (5) defines an effective statement by the People that they are "ready for trial" to mean that they can establish their actual readiness to proceed to trial upon mandated inquiry by the court. Additionally, "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance{**75 Misc 3d at 639} with the disclosure requirements of [CPL] 245.20" (CPL 30.30 [5]; 245.50 [3]) and the prosecutor must certify that all counts charged comply with CPL 100.15 and 100.40 or have been dismissed (CPL 30.30 [5-a]). Clearly, these provisions must be read together to determine the legislative intent and harmonized "in a way that renders them internally compatible" (Matter of Aaron J., 80 NY2d 402, 407 [1992]; People v Golo, 26 NY3d 358, 361 [2015]; McKinney's Cons Laws of NY, Book 1, Statutes § 97).

The amendments to CPL 30.30 which define when the People may be deemed ready for trial were enacted to address three issues: advance disclosure to defendants, readiness on partially converted accusatory instruments, and the court's obligation to ensure that the People are actually ready for trial on each occasion that they make the assertion. It is evident from a plain reading of the amended statute that the new subdivisions CPL 30.30 (5) and unfortunately numbered CPL 30.30 (5-a) independently respond to these issues. As recognized above, CPL 30.30 (5) addresses two of the issues. It imposes on the court an obligation to make an inquiry on the record on each court calendar date that the People assert that they are ready for trial, to establish their actual readiness. The subdivision also links disclosure to trial readiness by requiring that the People file and serve a certification of compliance under CPL 245.50 before or together with their statement of readiness in order to be ready for trial. This construction of the new statutory provisions "furthers the object, spirit and purpose of the statute" (McKinney's Cons Laws of NY, Book 1, Statutes § 96).

The enactment of CPL 30.30 (5-a) codifies the long established principle that the People [*3]can be ready for trial only upon a facially sufficient information (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990]; People v Bryant, 58 Misc 3d 148[A], 2018 NY Slip Op 50068[U] [App Term, 1st Dept 2018]), while abrogating case law that permitted the People to announce ready only as to jurisdictionally sufficient counts in a partially converted accusatory instrument (e.g. People v Gray, 7 Misc 3d 127[A], 2004 NY Slip Op 51864[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). CPL 30.30 (5-a) clearly provides that "a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of [CPL] sections 100.15 and 100.40 . . . and those counts not meeting the requirements . . . have been dismissed." Without this certification, {**75 Misc 3d at 640}the People cannot validly announce their readiness for trial (People v Ramirez-Correa, 71 Misc 3d 570 [Crim Ct, Queens County 2021]).

Section 100.40 sets forth the requirements for a local criminal court accusatory instrument to be facially sufficient. Section 100.15 provides the required form and content for such accusatory instruments. Subdivision (2) of CPL 100.15 directs:

"The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein."

Contained within CPL 100.15 (2) is a bar against duplicitous counts. It is well established that this prohibition applies to indictments and informations (CPL 200.30; People v Todd, 119 Misc 2d 488, 489 [Crim Ct, NY County 1983]; see People v Mitchell S., 151 Misc 2d 208, 211 [Crim Ct, Kings County 1991]). An accusatory instrument is duplicitous when a single count charges more than one offense. A duplicitous accusatory instrument

"may fail to give a defendant adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other" (People v Alonzo, 16 NY3d 267, 269 [2011]).

Indeed, although the language in CPL 100.15 (2) that "two or more offenses may be charged in separate counts" (emphasis added) appears permissive, several courts have required that each count of an information charge only one offense (see e.g. People v Shack, 86 NY2d 529, 539-541 [1995]; People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U], *5 [Crim Ct, Queens County 2016]; People v Saldana, 172 Misc 2d 79, 80 [Crim Ct, Bronx County 1997]; People v Barhan, 147 Misc 2d 253, 256 [Crim Ct, NY County 1990]). Therefore, if any count of an information is duplicitous, the information does not comply with CPL 100.15.

Under Penal Law § 215.50 (3), a person is guilty of criminal contempt in the second degree when he or she engages in{**75 Misc 3d at 641} intentional disobedience or resistance to the lawful process or other mandate of a court. In order to allege contempt of a court order, the accusatory instrument must allege that a "lawful order of the court clearly expressing an unequivocal mandate was in effect and the order was disobeyed by a person having knowledge of that order" (People v John, 150 AD3d 889, 889 [2d Dept 2017], lv denied 29 NY3d 1128 [2017] [internal quotation marks and citations omitted]). Thus, a defendant must be aware of both the existence of an order of protection and the terms of the order (People v McCowan, 85 NY2d 985, 987 [1995] [defendant must be informed of the contents of the order and the conduct it prohibits]). A defendant's name on the signature line of the order permits an inference that he was aware of its contents (People v Inserra, 4 NY3d 30, 33 [2004]). Similarly, the court may infer that the defendant had knowledge that the order of [*4]protection was in effect based upon allegations that the order indicated that the defendant was advised of the order's issuance and contents, and he was personally served with the order (People v Nedd, 60 Misc 3d 126[A], 2018 NY Slip Op 50914[U] [App Term, 1st Dept 2018]).

Here, defendant's conduct between September 21, 2021, and October 6, 2021, which included sending the complainant text messages in which he threatened to report her to immigration or post her nude photos online if she failed to pay him, separately commenting on her Facebook post, and separately messaging her on an application, constituted three distinct violations of the order of protection that was in place during that time. Indeed, the accusatory instrument alleges three separate modes of communication by which defendant contacted the complainant, in violation of the valid order of protection: text messaging, commenting on her Facebook post, and messaging her through an application. Thus, each form of communication should be charged in a separate count of criminal contempt in the second degree (see People v Villalon, 161 AD3d 486, 487 [1st Dept 2018] [finding criminal contempt count duplicitous because defendant's conduct of regularly but briefly showing up at victim's apartment, over the course of a month and 20 days, constituted distinct crimes that were required to be alleged in separate counts]). Accordingly, the count of criminal contempt in the second degree is duplicitous under CPL 100.15 (2), and therefore does not comply with CPL 30.30 (5-a).

Next, the court must determine the way in which the People's invalid 30.30 (5-a) certification impacts the People's speedy trial time. Pursuant to CPL 30.30 (1), the applicable speedy{**75 Misc 3d at 642} trial time is determined based on the highest charge in the accusatory instrument (People v Cooper, 98 NY2d 541, 543 [2002]). The highest charge in this case is an A misdemeanor. Pursuant to Penal Law § 70.15, an A misdemeanor is punishable by a definite sentence not exceeding 364 days. Because the charge is punishable by a sentence of imprisonment of more than three months, the People were required to announce their readiness for trial within 90 days of commencing the criminal action against defendant (CPL 30.30 [1] [b]). In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of 90 days. Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded (People v Brown, 28 NY3d 392, 403 [2016]; People v Santos, 68 NY2d 859, 861 [1986]; People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002]).

The People can be ready for trial only upon a facially sufficient information that complies with CPL 100.15 and 100.40 (CPL 30.30 [5-a]; People v Caussade, 162 AD2d at 8; People v Bryant, 58 Misc 3d 148[A], 2018 NY Slip Op 50068[U], *1). Because the count of criminal contempt in the second degree is duplicitous, it does not meet the requirements of CPL 100.15 (see People v Shack, 86 NY2d at 529; People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U], *5; People v Saldana, 172 Misc 2d at 80; People v Barhan, 147 Misc 2d at 253; People v Todd, 119 Misc 2d at 488). The court therefore finds that the People's December 10, 2021 certificate pursuant to CPL 30.30 (5-a) was invalid and the speedy trial clock continued to run until January 12, 2022, when defendant filed the instant motion (see CPL 30.30 [4] [a] [reasonable delay for motion practice excludable]). Accordingly, 95 days are chargeable to the People, which is past the 90-day period provided in CPL 30.30 (1) (b).

Upon calculating the speedy trial time periods applicable to this matter, the court finds [*5]that 95 days of delay are chargeable to the People. Therefore, defendant's motion to dismiss the accusatory instrument for violation of CPL 30.30 (1) (b) is granted. In light of this determination, the court need not address defendant's remaining claims.

Sealing is ordered stayed for 30 days.