Published on:

Petitioner Requests a Judgement Enforcing an Order Reducing Burglary Charges

A New York Criminal Lawyer said the petitioner requests a judgment prohibiting the enforcement of an order of Respondent, a District Court Judge, dated June 20, 1978, which rescinded Respondent’s earlier order dated December 5, 1977, granting an application pursuant to CPL 180.50, to reduce the charge of burglary in the Nassau County District Court, felony complaint number 2XX-1XX, to criminal trespass in the second degree.

Petitioner brings on this CPLR Article 78 proceeding since Petitioner claims that Respondent exceeded his authorized powers by rescinding the order granting the reduction of the charge against Petitioner.

A New York Criminal Lawyer said the District Attorney of Nassau County not only does not oppose this application but joins in the application. He has also brought two other proceedings against the same Respondent for the very same declaration and direction that Petitioner requests.

Petitioner was arrested on August 29, 1977, and was charged in the Nassau County District Court, felony complaint number 2757-1977, with burglary. The accusation was that he entered a dwelling at night with the intent to assault another.

On October 17, 1977, Petitioner, having been released in his own custody, waived his right to a hearing on the felony complaint and was held for the action of the grand jury. However, pursuant to CPL 180.40, the District Attorney applied to the County Court for an order returning the case to the District Court for reconsideration. On November 10, 1977, Judge H.M., the Presiding Judge of the County Court, granted the District Attorney’s application and ordered the case returned to the District Court.

A Bronx Criminal Lawyer said on December 5, 1977, the case appeared on the calendar in the District Court before Respondent Judge, and, pursuant to CPL 180.50, the District Attorney moved to reduce the charge of burglary to a charge of criminal trespass in the second degree. Respondent granted this application. At the same time, the District Attorney requested leave to file a prosecutor’s information charging Petitioner with assault in the third degree. Whereupon, Respondent directed that a prosecutor’s information be filed charging the defendant with assault.

On June 14, 1978, Respondent who rescinded his order of December 5, 1977, which reduced the charge from burglary to criminal trespass in the second degree. Respondent also filed a formal written opinion and order dated June 20, 1978, in which he said that his court did not have the authority to grant a 180.50 motion, and referred to another case Respondent has earlier decided, in which he had held that CPL 180.40 was unconstitutional.

Petitioner claims that Respondent Judge lacked the power to issue an order rescinding his order of the earlier granting of the application to reduce the charges pursuant to CPL 180.50. The District Attorney agrees.

Respondent improperly refused to comply with an order of the County Court, a superior court, which mandated him to reconsider the case in issue pursuant to CPL 180.40 and 180.50. Rather, Respondent declared CPL 180.40 unconstitutional and on that basis referred the case to the grand jury. Respondent assumed that the statute violated the New York State Constitution, Article I, Section 6, and the due process clause of the Federal Constitution.
Here, Respondent fails to recognize in his earlier decision that Article I, Section 6, of the New York State Constitution, which requires grand jury action, applies only to capital or otherwise infamous crimes. Thus, misdemeanors do not come within the purview of that section.

Also, a reading of the core section involved, CPL 180.40, shows that it involves only a preliminary proceeding. No state constitutional language or case law requires that matters preliminary to a potential felony indictment be conducted or processed only after a grand jury proceeding. Actions such as arraignments, bail applications and preliminary felony hearings are generally and legally conducted prior to grand jury hearings.

Also, preliminary proceedings prior to grand jury action are conducted in the lower courts pursuant to CPL 180.50 to inquire into the facts in issue and it is there decided whether any further proceeding is warranted. Such proceedings may show no cause or requirement for further prosecution or action.

All that CPL 180.40 accomplishes is permission to the lower court to reconsider its original CPL 180.50 evaluation. The action of the County Court, a superior court, pursuant to CPL 180.40 in renewing jurisdiction of a lower court for CPL 180.50 purposes does not violate any constitutional protection. To Respondent’s contention in his Donaldson decision that CPL 180.40 improperly permits the District Attorney a unilateral review of the District Court action, the ready answer is that the District Attorney is not authorized to reduce the pending felony to a misdemeanor. He is only authorized to apply to a superior court, which is then empowered only to request the lower court to reconsider its decision. To repeat, under CPL 180.40, the District Attorney does not have the power to reduce.

Therefore, CPL 180.40 is constitutional under both the Federal and State Constitutions and is legally effective with other CPL provisions. Petitioner’s application is granted and he shall have judgment as requested in his petition.

A Manhattan Criminal Lawyer said the provisions regarding the application of laws and procedures in courts require a deep understanding and experience to properly apply it to every proceeding. The Nassau County Criminal Attorneys and Nassau County Assault Lawyers of the Stephen Bilkis & Associates can aid you to issues concerning court proceedings.

To give you a worthy advice of your case for free, call us or visit our office near you.

Contact Information