People ex rel. Neufeld v. McMickens

OPINION OF THE COURT Kunzeman, J. Roberto Garcia was arrested on Tuesday, February 19, 1985, and charged with petit larceny, criminal possession of stolen property in the third degree, and criminal possession of a hypodermic instrument. He was arraigned in the Criminal Court of the City of New York, Queens County, that same day before Judge Beldock, who set bail and then determined that the day by which the misdemeanor complaint must be converted into an information or Garcia must be released pursuant to CPL 170.70, was February 25, 1985, the following Monday. Judge Beldock then adjourned the case to February 25, 1985. On February 22, 1985, Garcia applied for a writ of habeas corpus before Justice Rotker in the Supreme Court, Queens County. He argued that the case should have been adjourned to February 22, 1985, since, pursuant to CPL 170.70, the day of arraignment must be included in the five-day period during which an information must be filed or a defendant released. Garcia also argued that since the fifth day fell on a Saturday, the appropriate day pursuant to CPL 170.70 was the preceding Friday, February 22, 1985. Justice Rotker made the writ returnable on Monday, February 25, 1985. On February 25, 1985, Justice Rotker determined that he would deny the writ unless the District Attorney failed to file the corroborating affidavit by the close of business that day, [245] on the ground that the People had established “good cause” under CPL 170.70 (2), by virtue of their reliance on Judge Beldock’s adjourned date. That same day, Garcia made a de novo application for a writ of habeas corpus in this court (Thompson, J.), which, on February 26, 1985, was signed and referred to the Supreme Court, Queens County, Special Term, returnable on February 28, 1985. In the interim, on the afternoon of February 25, 1985, the People filed a corroborating affidavit. On February 28, 1985, Justice Leviss, sitting at Special Term, Part 10, dismissed the writ on the ground that it was brought in the wrong forum. On March 1, 1985, Garcia brought yet another application for a writ of habeas corpus, which this court (Thompson, J.), granted and referred to the Supreme Court, Queens County, to be heard on March 5, 1985. On March 5, 1985, Justice Rotker, sitting in the Supreme Court, Queens County, sustained the writ of habeas corpus on the ground that, counting the day of arraignment, Garcia had been incarcerated for over six days prior to the conversion of the misdemeanor complaint into an information. Justice Rotker held that the failure to file an information within the five days provided for in CPL 170.70 cannot be cured by a later filing, and that the District Attorney’s reliance on the arraignment court’s misinterpretation of CPL 170.70 did not constitute good cause. On March 18, 1985, Garcia pleaded guilty to attempted criminal possession of a hypodermic instrument, and was sentenced to 30 days’ imprisonment. We hold that inasmuch as the day of arraignment should not be included in the five days within which a misdemeanor complaint must be converted to an information or a defendant released on his own recognizance pursuant to CPL 170.70, Special Term erred in sustaining Garcia’s writ of habeas corpus. Initially, we note that although this appeal is technically moot, since Garcia has since pleaded guilty to criminal possession of a hypodermic instrument and has been sentenced, the issue as to whether or not the day of arraignment should be included in the five-day period set forth in CPL 170.70 may be reviewed by this court. In Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715), the Court of Appeals indicated that a court should rule on an issue even though it is technically [246] moot as to those who seek relief when there is: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” (see also, People ex rel. Barna v Malcolm, 85 AD2d 313, 315, appeal dismissed 57 NY2d 675). Application of the above criteria to the instant case reveals that review of the issue presented is warranted. CPL 170.70 provides in pertinent part: "§ 170.70 Release of defendant upon failure to replace misdemeanor complaint by information. "Upon application of a defendant against whom a misdemeanor complaint is pending in a local criminal court, and who, either at the time of his arraignment thereon or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than five days, not including Sunday, without any information having been filed in replacement of such misdemeanor complaint, the criminal court must release the defendant on his own recognizance”. The issue to be determined here is whether CPL 170.70 is clear on its face as to whether or not the day of arraignment is to be included in calculating the five-day period within which a misdemeanor complaint must be converted to an information. If the statute is clear on its face, then reference to the rules of construction is not to be made (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 76). If, however, the statute is unclear on its face, the rules of construction are properly invoked. Although CPL 170.70 is clear on its face insofar as it excludes Sundays from the computation of the five-day period within which a misdemeanor complaint must be converted to an information or a defendant released, it is unclear on its face as to whether or not the day of arraignment is to be included in calculating the five-day period. Thus, while CPL 170.70 clearly indicates that commitment to custody (i.e., arraignment) commences the running of the five-day period, it does- not indicate whether or not the day that a defendant is committed to custody (i.e., arraigned) is to be included in calculating the five-day period (see, Matter of Robert G., 64 Misc 2d 129). Application of the rules of construction is [247] therefore warranted here (see, General Construction Law § 110; Messina v Lufthansa German Airlines, 64 AD2d 890, affd 47 NY2d 111; Union Mut. Life Ins. Co. v Kevie, 17 AD2d 109, affd 13 NY2d 971; Matter of Picciano v Hammock, 92 AD2d 1043; People ex rel. Barna v Malcolm, 85 AD2d 313, supra; People v Breckenridge, 16 Misc 2d 704). General Construction Law § 20 provides: "§ 20. Day, computation "A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. If such period is a period of two days, Saturday, Sunday or a public holiday must be excluded from the reckoning if it is in an intervening day between the day from which the reckoning is made and the last day of the period. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning” (emphasis added). Pursuant to that provision, which excludes the calendar day from which the reckoning is made, the day of arraignment is not included in the five-day period set forth in CPL 170.70. Thus, Special Term erred in including the day of arraignment in calculating the five-day period of CPL 170.70.