People v. Hernandez — 98 N.Y.2d 8

Majority

p. 8

[770 NE2d 566, 743 NYS2d 778]

The People of the State of New York, Respondent, v Bulmaro Hernandez, Appellant.

Argued March 13, 2002;

decided May 7, 2002

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POINTS OF COUNSEL

Legal Aid Society Criminal Appeals Bureau, New York City (Deepa Rajan and Andrew C. Fine of counsel), for appellant.

I. The court below should have dismissed the People’s appeal because it lacks jurisdiction to hear appeals from a court’s oral order dismissing an accusatory instrument pursuant to CPL 140.45. (People v Machado, 182 Misc 2d 194 ; People v Coppa, 57 AD2d 189 , 45 NY2d 244 ; People v Laing, 79 NY2d 166 ; People v Stevens, 91 NY2d 270 ; People v Santos, 64 NY2d 702 ; Matter of State of New York v King, 36 NY2d 59 ; People v Williams, 186 Misc 2d 705 , 96 NY2d 789 ; People v Keeffe, 50 NY2d 149 ; People v Holmes, 206 AD2d 542 ; People v Herrara, 171 AD2d 85 .) II. Criminal Court properly dismissed the misdemeanor complaint on oral motion, where the People failed to establish reasonable cause to believe appellant committed the offenses of consumption of alcohol in a public place, disorderly conduct, resisting arrest, or any other offenses. (People v Dumas, 68 NY2d 729 ; People v Pagan, 273 AD2d 952 ; People v Tarka, 75 NY2d 996 ; People v Alejandro, 70 NY2d 133 ; People v McRay, 51 NY2d 594 ; People v Jennings, 69 NY2d 103 ; County of Riverside v McLaughlin, 500 US 44 ; Gerstein v Pugh, 420 US 103 ; People ex rel. Maxian v Brown, 164 AD2d 56 .)

Robert M. Morgenthau, District Attorney, New York City 0Suzanne M. Herbert and Mary C. Farrington of counsel), for respondent.

I. The court below had jurisdiction to review the procedurally flawed dismissal of the Criminal Court complaint filed against defendant. (People v Coppa, 45 NY2d 244 ; People v Littles, 188 AD2d 255 ; People v Harmon, 181 AD2d 34 ; People v Ainsworth, 106 AD2d 357 ; People v Keeffe, 50 NY2d 149 ; People v Dumas, 68 NY2d 729 ; People v Herrara, 171 AD2d 85 ; People v Holmes, 206 AD2d 542 ; People v Holmes, 178 AD2d 437 ; Gerstein v Pugh, 420 US 103 .) II. Criminal Court’s dismissal of the accusatory instrument against defendant was improper. (Matter of State of New York v King, 36 NY2d 59 ; Matter of Duckman, 92 NY2d 141 ; People v Witkowski, 90 AD2d 723 ; People v Douglass, 60 NY2d 194 ; People v Machado, 182 Misc 2d 194 ; People v Dumas, 68 NY2d 729 ; People v Allen, 92 NY2d 378 ; People v Alejandro, 70 NY2d 133 ; People v Cintron, 95 NY2d 329 ; People v Bakolas, 59 NY2d 51 .)

OPINION OF THE COURT

As the result of a warrantless arrest, defendant was charged in a misdemeanor complaint with consumption of alcohol in a

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public place, disorderly conduct and resisting arrest. The trial court dismissed the complaint pursuant to CPL 140.45. That section requires dismissal when an accusatory instrument filed pursuant to warrantless arrest provisions is facially insufficient and the “court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file” a sufficient accusatory instrument (CPL 140.45). The People appealed pursuant to CPL 450.20 (1) and the Appellate Term reversed and reinstated the accusatory instrument. The Appellate Term was in error.

No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute (see People v Stevens, 91 NY2d 270 , 277 [1998]). In the context of CPL 450.20, we have stated that “[c]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes. This is especially so in one of the most highly structured and highly particularized articles of procedure— appeals. Where a statute delineates the particular situations in which it is to apply, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.’ The words and numerical references and incorporations in CPL 450.20 could not be plainer * * *” (People v Laing, 79 NY2d 166 , 170-171 [1992] [citations and internal quotation marks omitted]).

CPL 450.20 (1) only authorizes an appeal from an order dismissing an accusatory instrument if the order was entered “pursuant to section 170.30, 170.50, or 210.20.” In contrast, the Legislature has not provided the People with any right of appeal from CPL 140.45 dismissals. As the legislative history of CPL 140.45 explains, “in a case of an arrest under a warrant, the information or felony complaint underlying the warrant is filed with, and examined for sufficiency by, a local criminal court before the arrest,” whereas, when an arrest is made without a warrant, since the arraignment “is the court’s first opportunity to examine it, it should have the power to reject it on that occasion” (Commn Staff Notes, reprinted following NY Cons Laws Serv, CPL 140.45, at 186; see also People v Machado, 182 Misc 2d 194 [Crim Ct, Bronx County 1999]). Thus, the Appellate Term had no jurisdiction to entertain the People’s appeal.

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Accordingly, the order of the Appellate Term should be reversed and the case remitted to that court for dismissal of the appeal.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Rosenblatt and Graffeo concur.

Order reversed and case remitted to the Appellate Term, First Department, with directions to dismiss the appeal taken to that court.

Cases cited

People v. Machado 182 Misc 2d 194 N.Y. Crim. Ct. 1999-08-11 p. 9, p. 10
People v. Coppa 57 AD2d 189 N.Y. App. Div. 1977-05-02 p. 9
People v. Coppa 45 NY2d 244 N.Y. 1978-07-11 p. 9
People v. Laing 79 NY2d 166 N.Y. 1992-02-20 at 170-171 p. 9, p. 10
People v. Stevens 91 NY2d 270 N.Y. 1998-02-19 at 277 p. 9, p. 10
People v. Santos 64 NY2d 702 N.Y. 1984-12-18 p. 9
State v. King 36 NY2d 59 N.Y. 1975-01-17 p. 9
People v. Williams 186 Misc 2d 705 N.Y. App. Term 2000-10-20 p. 9
Dorsey v. City of Poughkeepsie 96 NY2d 789 N.Y. 2001-04-03 p. 9
People v. Keeffe 50 NY2d 149 N.Y. 1980-05-01 p. 9
People v. Holmes 206 AD2d 542 N.Y. App. Div. 1994-07-25 p. 9
People v. Herrara 171 AD2d 85 N.Y. App. Div. 1991-09-23 p. 9
People v. Dumas 68 NY2d 729 N.Y. 1986-07-10 p. 9
People v. Tarka 75 NY2d 996 N.Y. 1990-05-08 p. 9
People v. Alejandro 70 NY2d 133 N.Y. 1987-06-11 p. 9
People v. McRay 51 NY2d 594 N.Y. 1980-12-18 p. 9
People v. Jennings 69 NY2d 103 N.Y. 1986-12-18 p. 9
County of Riverside v. McLaughlin 500 US 44 SCOTUS 1991-05-13 p. 9
Gerstein v. Pugh 420 US 103 SCOTUS 1975-02-18 p. 9
People ex rel. Maxian v. Brown 164 AD2d 56 N.Y. App. Div. 1990-10-30 p. 9
People v. Littles 188 AD2d 255 N.Y. App. Div. 1992-12-01 p. 9
People v. Harmon 181 AD2d 34 N.Y. App. Div. 1992-06-23 p. 9
People v. Holmes 178 AD2d 437 N.Y. App. Div. 1991-12-02 p. 9
In re Duckman 92 NY2d 141 N.Y. 1998-07-07 p. 9
People v. Witkowski 90 AD2d 723 N.Y. App. Div. 1982-11-16 p. 9
People v. Douglass 60 NY2d 194 N.Y. 1983-11-01 p. 9
People v. Allen 92 NY2d 378 N.Y. 1998-10-22 p. 9
People v. Cintron 95 NY2d 329 N.Y. 2000-10-24 p. 9
People v. Bakolas 59 NY2d 51 N.Y. 1983-05-05 p. 9