COA decides curious 30.30 case

People v. Price (Ct. App. 2/11/2010) concerns the catch-all proviso in CPL § 30.30, which excludes time periods in which there are "exceptional circumstances."  In Price, the defendant was charged with Attempted Disseminating Indecent Material to Minors 1º based on an Internet chat with an undercover officer, posing as a 14-year-old girl.  While sexually explicit, the communications did not involve any exchange of sexual images.  The defendant was arraigned on the charges in a Suffolk County local criminal court.

Meanwhile, the Second Department had reversed a defendant's conviction under a similar set of facts.  That court held that a defendant could not be convicted for the crime in question unless there was a transmission of images.  The People obtained leave to appeal that case to the Court of Appeals.

Back to Price.  The Suffolk County District Attorney's Office, believing it could not obtain an indictment in light of AD2's ruling in the other case, decided against proceeding with an indictment against the defendant in Price.  Instead, it decided to wait until the Court of Appeals issued its ruling in the AD2 case on appeal.  And, indeed, the People's decision was fortuitous: The Court of Appeals reversed the AD2 in People v. Kozlow, 8 N.Y.3d 544 (2007) and held that a defendant could be convicted of the crime without transmitting images. 

The People then obtained an indictment in Price.  Meanwhile, more than six months had elapsed since the felony complaint was filed.  Accordingly, the defendant filed a motion to dismiss on CPL § 30.30 grounds.  Superior Court granted the motion and the Second Department affirmed.

The Court of Appeals likewise affirmed, holding that the timing of events with the Kozlow appeal did not amount to "exceptional circumstances" in Price. Chief Judge Lippman wrote:

Application of the exclusion under these circumstances would permit a scenario in which a criminal complaint could pend for an open-ended and potentially lengthy period on the mere prospect that a change in the law might render it again viable. As we stated in People v Cortes (80 NY2d 201 [1992]), '[l]egal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an 'exceptional circumstance' (id. at 211-212).

The court recognized the unusual nature of the case and that the "People here were not in control of the ultimate circumstance that prevented them from being unable to proceed to trial --- the erroneous Appellate Division decision in Kozlow."  Nevertheless, it posited a number of alternatives that the People could have pursued, none of which I find particularly satisfying:

• seek a continuance from the local criminal court rather than litigate "exceptional circumstances" after the fact.  However, this would not have affected the substance of the court's § 30.30 analysis, only its timing.  The motion court would have still been bound to apply § 30.30 once six months had elapsed. 

• dismiss the felony complaint and refile if and when AD2 was reversed.  The court acknowledged in footnote one that this runs contrary to the plain language of People v. Osgood, 52 N.Y.2d 37 (1980), which held that when a felony complaint is dismissed, a subsequent complaint relating to the same offense relates back, for CPL § 30.30 purposes, to the date the original complaint was filed.  The court's response is essentially that Osgood could be confined to its facts and the People, in Price, could have "litigated [the issue] through the appellate process."  But Osgood's language is quite explicit, as is the CPL on the relation back of accusatory instruments.  Moreover, the court in footnote one never says that Osgood is bad law, only that it might not have applied in Price.  In fairness, the People were entitled to rely on Osgood and, for that matter, AD2's ruling in Kozlow.       Moreover, dismissal of the complaint would not have provided any real certainty to Price, who would have still been on notice that his case was not truly "over" just because the felony complaint had been dismissed.

Of course, part of the dissatisfaction with Price is that we know he should have been prosecuted because, in retrospect, AD2's decision in Kozlow was incorrect.  What I think the Court of Appeals was trying to do was to look at the case as if it had not reversed Kozlow.  Then, Price would have been pending for many months for naught and a defendant would have unnecessarily had his life inconvenienced by pending criminal charges.

All-in-all, Price is a troubling development in the CPL § 30.30 area and might warrant (gasp) some legislative tinkering with CPL § 30.30, perhaps adding a new exception for cases where the People certify, in good faith, that they are delaying prosecution in order to wait for a key appellate decision that is likely to affect whether they will prosecute the case at all.  (LC)