Today, in People v. Correa (1st Dept. 2/23/2010), the First Department held that the Bronx Criminal Division (BCD) --- the experimental merger of Supreme Court and Criminal Court in Bronx County --- is unconstitutional. More on the case later, but here are some preliminary thoughts on the "aftermath" of the decision.
So is that it, the merger is unconstitutional?
- We probably have not seen the last of this issue.
- Due to the magnitude of the issue involved, leave to appeal will likely be granted. Once the case goes up to the Court of Appeals, I would imagine that Chief Judge Lippman, as one of the promulgators of the BCD enabling rules, will recuse himself.
Doesn't this mean that tens of thousands of convictions will be overturned?
- The short answer: no. The sky is not falling in Bronx County.
- The decision does not affect felonies, only Class A misdemeanors.
- Most misdemeanor defendants pleaded guilty and were likely satisfied with the plea agreements they reached with the People. They received sentences like a conditional charge, time served, or a fine. They will not be banging down the courthouse door trying to get a new trial.
- Of those defendants who do wish to use the decision as a way to overturn their convictions, most will have to overcome the problem of retroactivity. While new decisions apply to cases in the direct appeal pipeline, most cases have been "final" for quite some time because defendants did not file notices of appeal. Thus, their only avenue is a 440 motion. It is unclear whether Correa, if it is not overturned, will apply to cases on collateral review.
How does this affect cases calendared for tomorrow?
- It will not have much practical effect.
- Most of the judges in Bronx County are Criminal Court judges who are Acting JSCs.
- The "up front" calendar parts are, to my knowledge, staffed only by Acting JSCs. They can continue to hear both felony and misdemeanor cases. When hearing felonies, they are wearing their AJSC hats. When hearing misdemeanors, they are JCCs.
- The District Attorney's Office has hopefully captioned new accusatory instruments to say, "New York City Criminal Court" instead of "Bronx Supreme Court, Criminal Division." Arraignments will continue to occur in the Criminal Court Arraignment Part.
- Trials of misdemeanors before JSCs who are not also JCCs should probably be adjourned until there is word on whether Correa will be stayed pending appeal to the Court of Appeals.
So what are the open questions?
- If the BCD is unconstitutional, the cases currently pending before it are a nullity. Accusatory instruments will need to be refiled in the Criminal Court, unless one could argue that they were originally filed in Criminal Court and, since the order purporting to transfer them to the BCD was invalid, therefore they have "remained" in Criminal Court ever since. If that is the case, nothing new has to happen except to amend the caption of each accusatory instrument.
- If accusatory instruments have to be refiled, what is the effect on 30.10 (limitations period) and 30.30 (prosecutorial readiness)? Can they relate back to the original filing date if the court was unconstitutional? (LC)
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