Anjali Pathmanathan∞

“A prudent magistrate should proceed with the utmost caution when he has reason to suspect that a criminal proceeding was commenced before him, not to vindicate public justice, but to serve some private purpose, and should withhold process until satisfied that the complainant is acting in good faith in behalf of the people, and not to aid personal objects.”1

Abstract

The existing criminal procedure laws of New York do not afford the misdemeanor accused any meaningful preliminary opportunity to fight the substantiation of the accusations against them. This is problematic given that a criminal prosecution can have extreme consequences on an individual’s life, including the loss of liberty, employment, housing, child custody or freedom from immigration removal proceedings. This article therefore analyzes the weaknesses in the existing criminal procedure laws for these prosecutions, and assesses how historical protections dissolved into the myth of preliminary due process for misdemeanor cases today. Ultimately, since the current procedures are ineffective in protecting against unwarranted misdemeanor prosecutions, the solution lies in reintroducing preliminary hearings in all misdemeanor prosecutions to better provide due process for all in the State of New York.

In 1906, the Court of Appeals of New York described one of society’s most fundamental principles of the justice system: that one should not be criminally prosecuted on an unsupported or unsubstantiated accusation.2 In New York, however, the existing criminal procedure laws do not afford the misdemeanor accused any meaningful preliminary opportunity to fight the substantiation of the accusations against them. This is problematic given that a criminal prosecution can have extreme consequences on an individual’s life at the very onset of their case. This article therefore analyzes the weaknesses in the existing criminal procedure laws for misdemeanor prosecutions, and discuss how historical protections dissolved into the myth of preliminary due process for misdemeanor cases today. Ultimately, since the current procedures are ineffective in protecting against unwarranted misdemeanor prosecutions, the solution lies in reintroducing preliminary hearings in all misdemeanor prosecutions to better provide due process for the accused in the State of New York.

The problem with weak due process provisions at the commencement of a case is that any prosecution can have extreme consequences for the accused, no matter how minor the offense.3 For example, the accused can be incarcerated after the commencement of the prosecution,4 and can lose income during the arrest, booking time, and court appearances.5 Similarly, the accused’s employment can be terminated for the criminal accusations alone,6 and a prosecution can affect one’s ability to find employment in the future.7 A prosecution can also effect the accused’s ability to maintain custody of children,8 to return home,9 to see family,10 or to even stay in the country if not a United States citizen.11

These effects of a prosecution can force individuals into family, housing, or immigration court, thereby activating a host of additional civil consequences to the detriment of the individual and at a cost to society.12 Moreover, a prosecution is public information in New York,13 and an arrest can never be expunged from the accused’s record, even if the accusation was unfounded in the first place.14 These consequences acutely impact individuals accused of misdemeanors,15 which make up the majority of prosecutions in the State of New York.16 In 2015, for example, 70 percent of all criminal arrests in New York were for misdemeanor offenses.17 In that same year, however, 39 percent of New York’s misdemeanor prosecutions were ultimately dismissed.18 Thus, in 2015 alone, more than 127,000 individuals suffered prosecution for criminal charges that did not result in trials, guilty pleas or convictions.19

Given the significant consequences of misdemeanor prosecutions for the accused, the law should defend against the unnecessary and prolonged prosecution of any individual in the criminal justice system. Regrettably, however, the New York State Criminal Procedure Law (C.P.L.) fails to protect individuals accused of misdemeanors from unexamined and oftentimes unsupportable accusations. This results in countless unnecessary entanglements with the justice system for individuals who have no procedural protection to assert the lack of probable cause for their prosecution. The only viable solution to this problem is for the New York State Legislature to reenact a misdemeanor preliminary hearing into the C.P.L. Authorizing the right to a misdemeanor preliminary hearing would give the accused a meaningful opportunity to contest the probable cause for his or her prosecution, and eliminate prolonged prosecutions and wasted judicial resources on misdemeanor prosecutions that will never be pursued to trial.

In New York, a misdemeanor prosecution most commonly begins with an arrest.20 A lawful arrest is authorized when an officer has “reasonable cause” to believe that the individual committed a crime, regardless of whether the crime was committed in the officer’s presence.21 Under the C.P.L., “reasonable cause” exists when information, appearing to be reliable, collectively persuades an ordinary person that it is reasonably likely that the individual committed an offense.22 Thus, an officer can effectuate an arrest based entirely on hearsay,23 which a prosecutor can subsequently rely upon to begin the prosecution.24

To commence the misdemeanor prosecution, the prosecutor must file an accusatory instrument with a Criminal Court, upon which the accused is arraigned on the non-felony offenses.25 An accusatory instrument can either be in the form of an information or a misdemeanor complaint.26 The difference between an information and a misdemeanor complaint is that the latter may contain uncorroborated hearsay statements to form the basis of the prosecution.27 That said, an accused cannot be convicted on hearsay allegations;28 the complaint must be “converted” into an information by corroborating the hearsay with verified supporting depositions from the accusers.29 If the prosecution cannot corroborate the hearsay within the statutorily permissible speedy trial time, the accusations must be dismissed.30

Until conversion takes place, however, a person suffers criminal prosecution based solely on hearsay evidence that has not been sworn to by any first-hand witness of the alleged offense.31 Moreover, the consequences of the prosecution take immediate effect as early as at arraignments, despite any weaknesses in the complaint. As soon as the accusatory instrument is filed in court, a judge can incarcerate the accused pre-trial, or can issue orders of protections banning the individual from returning to his or her home or family.32 The accused can immediately lose his or her employment by the mere fact of having an open criminal case,33 or be thrown into immigration removal proceedings.34 Thus, even if the prosecutor never corroborates the hearsay in the complaint, the accused may suffer the consequences of the prosecution for several weeks or months.35

One of the few preliminary procedural safeguards for misdemeanor prosecutions in the existing C.P.L. is the “verification” requirement.36 Regardless of whether the prosecution commences on a complaint or an information, every accusatory instrument and supporting deposition must be “verified” by the accuser in the document.37 The accuser, often referred to as the deponent or complainant, does not have to be someone with personal knowledge of the allegations; the deponent could be someone who has mere “information and belief” that the allegations occurred, despite having no first-hand knowledge on the matter.38 Essentially, any person can be the deponent in an accusatory instrument, including a prosecutor or police officer, as long as their accusations are “verified.” 39

As one of the only protections against unfounded misdemeanor prosecutions, however, the standards for verification are surprising low. In order to verify an allegation, one may either (i) swear in person to the facts before a court or officer, or (ii) merely sign to the truth of the facts asserted on a document that contains a form notice that “false statements therein are punishable as a class A misdemeanor.”40 Unless expressly specified by the judge, the deponent may choose which method of verification they prefer,41 and does not have to “actually verbalize an intention to swear to any sort of oath.”42 Thus, the statute allows for complainants to lodge allegations without ever making any solemn oath in the presence of witnesses or in the formal forum of a court to the truth of the matters they assert.43

Under the existing procedures, it is sufficient for a deponent to merely read and sign the accusatory instrument, with the untested assumption that the person appreciates the significance of his or her actions. The misdemeanor accused has no preliminary opportunity to contest the verification of the allegations, and thus “the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case.”44 Instead, once a complaint is verified, the information is deemed to establish a prima facie case and the accused individual has no right to testify or cross-examine the accuser at any preliminary probable cause hearing.

Since the misdemeanor accused has no legislative right to a probable cause hearing, the verified information or complaint is the sole instrument upon which the accused can be prosecuted.45 As such, the factual allegations in the information must at least meet a minimal evidentiary standard to be deemed sufficient under the C.P.L.46 This minimal standard is referred to as a prima facie case. A prima facie case exists when the prosecutor has put forth the low burden of “legally sufficient evidence.”47 Legally sufficient evidence is “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.”48 However, this term is a purely legal concept that focuses on whether the factual accusations address every element of the offense, without requiring any assessment on the quality or weight of that evidence.49 Thus, a prima facie case can be founded on unsubstantiated or unsupported allegations that would be considered unreliably inadmissible at a trial or before a grand jury.50

This criminal procedure results in some prosecutions where it is reasonably unlikely that the accused committed the crimes charged. For example, this circumstance occurs when “evidence of robbery consists solely of the testimony of a complainant who holds a grudge against the defendant, and eight impartial witnesses, who were present during the incident in issue, testify that all that occurred was a fight between the parties without any semblance of robbery.”51 Essentially, a prosecutor may pursue a legally sufficient case without ever evaluating whether the allegations are convincing or outweighed by contradictory evidence, and despite the evidence being wholly inadequate to prove that the accused actually committed the offense.52

Over a century ago, the New York Court of Appeals (the Court) understood the importance of protecting the accused from unsupported prosecutions in People ex rel. Livingston v. Wyatt.53 Acknowledging confusion about the meaning of an “information,” the Court articulated that an information must state enough facts to show that the complainant was “acting in good faith, and that he ha[d] reasonable grounds to believe that a crime ha[d] been committed by some person named or described.”54 Drawing on analogies in civil and criminal law, the Court held that all informations should be made upon an oath, “for otherwise an unfounded accusation could be set on foot and an investigation instituted upon unsupported assertion without any proof whatever.”55

The Court also warned that “the sole foundation for a useless and oppressive proceeding” could be based on “the worst of motives,” and would result in the accused’s private matters being invaded because of “[m]alice, civil actions, business rivalry, speculation, or curiosity.”56 Intimating that magistrates must fill the role of the grand jury,57 the Court instructed judges to search for good faith accusations and reasonable grounds to believe a crime was committed before the accused is “prosecuted on the mere chance that some crime may be discovered.”58 Pressing magistrates to only accept evidence under sanctions of oath and perjury, the Court reminded that:

A prudent magistrate should proceed with the utmost caution when he has reason to suspect that a criminal proceeding was commenced before him, not to vindicate public justice, but to serve some private purpose, and should withhold process until satisfied that the complainant is acting in good faith in behalf of the people, and not to aid personal objects.59

The New York legislature has supported this fundamental principle throughout the better part of the 20^th Century. In 1957, the Court reiterated that verification is required for misdemeanor offenses when the accused could be sentenced to imprisonment and penalties “such as loss or suspension of a license to drive an automobile, to practice one’s profession or to engage in a licensed business.”60 Citing the Supreme Court of the United States, the Court held that “[t]he requirement that a prosecution for misdemeanor be based upon a sworn information . . . is an essential guarantee to a defendant of a fundamental right, namely, that he be not punished for a crime without a formal and sufficient accusation.”61

Similarly, in 1975, the Court reminded that, although the oath had become somewhat formalistic and perfunctory, it still served two important purposes: “(1) to awaken the witness to his moral duty to tell the truth, and (2) to deter false testimony by providing a legal ground for perjury prosecutions.”62 In People v. Parks,63 the Court reiterated that to achieve these two principles, the oath must be a “meaningful exercise,” where the witness “has sufficient intelligence to understand the nature of the oath and to give a reasonably accurate account of what he has seen and heard.”64

Even in the 1990s, the Court stressed the importance of an assurance “that there exists a sound and supportable basis for subjecting the accused to a trial,” particularly when the accusatory instrument is the sole basis for the prosecution and there is no independent grand jury body to review the claims.65 Relatedly, in Neftali D. the Court held:

A verification attesting to the truth of the contents of a document on penalty of perjury is of the same effect as a testimonial oath, which at once alerts a witness to the moral duty to testify truthfully and establishes a legal basis for a perjury prosecution. This verification procedure is intended to assure a measure of reliability regarding the contents of the petition.66

Clearly, the Court recognized the importance of protecting against complaints lodged without complainants fully appreciating the weight of their accusations. Until the 1970s, however, New York was largely governed by unconsolidated and differing criminal procedure laws throughout the State.67 Thus, different areas of the State had differing preliminary due process procedures for the misdemeanor accused. Notably, New York City provided the right to a preliminary hearing for misdemeanor prosecutions in Municipal Courts until the 1970s.68 The City since repealed New York City Municipal Courts Act, which specifically charged magistrates with the authority to conduct misdemeanor preliminary hearings by taking authenticated, signed and certified testimony from witnesses, before the State could proceed with the prosecution.69 Unfortunately, these preliminary hearings were exclusively provided in New York City; no similar preliminary due process protections existed for the misdemeanor accused in the rest of the State.

In 1961, Governor Nelson A. Rockefeller called for the consolidation and revision of New York’s Penal Law and Code of Criminal Procedure.70 The Governor established the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, known as the Bartlett Commission.71 The Bartlett Commission (the Commission) was charged with studying the State’s unconsolidated criminal laws to create a uniform penal and criminal procedure code throughout New York.72 Under this charge, the Commission drafted interim reports on their tentative proposals throughout the 1960s, and conducted hearings after each publication to gather feedback from the public.73 The transcripts of these public hearings provide the greatest illumination on how the laws of verification were shaped, and how misdemeanor preliminary hearings were eliminated in New York City. The Commission ultimately submitted their proposed Criminal Procedure Law to the Legislature in 1968, with the announced goal “to achieve justice, provide fair trials and speedy dispositions and see that defendants are sentenced properly” with balance and fairness.74 On September 1, 1971, the new Code of Criminal Procedure became the law throughout the State.75

In 1961, Governor Nelson A. Rockefeller called for the consolidation and revision of New York’s Penal Law and Code of Criminal Procedure.[note]Timeline of The Bartlett Commission, 1961–1971, Historical Soc’y of the New York Courts, available at https://www.nycourts.gov/history/programs-events/images/Past-Event-20120924-Bartlett-Commission.pdf [https://perma.cc/473D-76J5] (last visited March 4, 2018).[/note] The Governor established the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, known as the Bartlett Commission.[note]On the recommendation of Joseph F. Carlino, Speaker of the Assembly, Governor Rockefeller designated Richard J. Bartlett as Chairman of the Commission. Other Commission appointees included Timothy N. Pfeiffer as Vice-Chairman, and Howard A. Jones, William B. Mahoney, Justice Philip Halpern, Professor Herbert Wechsler, John J. Conway Jr., Assemblyman William Kapelman, and Nicholas Atlas as members. Richard D. Denzer was appointed as Counsel to the Commission, and Peter J. McQuillan joined as Assistant Counsel. Id.; see also Schaffer Law Library’s Guide on New York State Legislative History Materials, Albany Law Sch., available at http://www.albanylaw.edu/media/user/librarypdfs/guides/nyleghist.pdf [https://perma.cc/D6MV-UDQ6] (last visited March 4, 2018).[/note] The Bartlett Commission (the Commission) was charged with studying the State’s unconsolidated criminal laws to create a uniform penal and criminal procedure code throughout New York.[note]See, e.g., David Badertscher & Peter J. McQuillan, Records of the Temporary Commission on Revision of the Penal Law and Criminal Code (1961–1970), available at https://www.nycourts.gov/library/nyc_criminal/Temporary%20Commission.pdf [https://perma.cc/2Q3S-T75W] (last visited June 21, 2017).[/note] Under this charge, the Commission drafted interim reports on their tentative proposals throughout the 1960s, and conducted hearings after each publication to gather feedback from the public.[note]See Timeline of The Bartlett Commission, 1961–1971, supra note 71.[/note] The transcripts of these public hearings provide the greatest illumination on how the laws of verification were shaped, and how misdemeanor preliminary hearings were eliminated in New York City. The Commission ultimately submitted their proposed Criminal Procedure Law to the Legislature in 1968, with the announced goal “to achieve justice, provide fair trials and speedy dispositions and see that defendants are sentenced properly” with balance and fairness.[note]Id. at 2 (citing Lacey Fosburgh, New Criminal Process Law in Effect, N.Y. Times, Sept. 5, 1971, at 34, available at http://www.nytimes.com/1971/09/05/archives/new-criminal-process-law-in-effect.html [https://perma.cc/NF6H-YHJD]).[/note] On September 1, 1971, the new Code of Criminal Procedure became the law throughout the State.[note]Id.[/note]

The existing laws of verification and initiating misdemeanor prosecutions were formed by the Bartlett Commission after much debate. In a public hearing on February 1, 1968,76 Judge Frederick M. Marshall of Erie County first proposed the idea “of eliminating the necessity of presenting every case to a grand jury.”77 The next day in Rochester, Legal Adviser to the Police Bureau, Robert Aulenbacher, discussed the procedure for complainants to sign informations.78 Aulenbacher argued that “it is not important as to who administers the oath but rather that the oath has been administered and that the person makes the allegation under oath.”79 Instead of requiring a magistrate or judge to issue the oath and take witness statements before commencing the prosecution, Aulenbacher suggested that “if the officer, a ranking officer and a responsible officer, were granted that authority to take the statement under oath, it would go some way in inconveniencing the citizens who have already been the victim of an unlawful act or alleged unlawful act.”80 In apparent agreement, Commissioner Bartlett suggested that a revision could be included to “provide that a statement submitted by an officer in support of an information or the information itself perhaps . . . need not be sworn to at all but that the statute provide that such a statement submitted by a police officer have the same penalty for false statement as perjury.”81 Commission members reaffirmed that this method of oath “would be in place of swearing,” which would save the police officers more time since they would only have to come into court to sign an information rather than conduct an actual hearing. Minutes of a Public Hearing Held by the Temp. Comm’n on Revision of the Penal Law and Criminal Code, 177th Leg., 191st Sess. 42–43 (N.Y. Feb. 17, 1968), http://www.nycourts.gov/library/nyc_criminal/Penal-law-Bartlett/155.pdf (last visited March 4, 2018) [https://perma.cc/4TTN-NFRA].}} Citing to the penalty of perjury used for income taxes as equally reliable to verify criminal allegations, the Commission improbably took the Aulenbacher’s suggestion under advisement for the next draft of the proposed C.P.L.82

On February 8, 1968, the Commission convened for more public hearings in Albany.83 That morning, Morris Zweig, known as “Mr. Magistrate of New York,” orated that the C.P.L. should include “the manner of verification and before whom such verification of the information or deposition should be made.”84 In response, Commissioner Bartlett acknowledged the importance of knowing that a prosecution “isn’t frivolously undertaken,” and that “if the Court acts upon such a statement or charge that the person making it is subject to some penalty for outright lying.”85 Again, however, he returned to his perjurious income tax analogy:

[T]hat we might consider for the purposes of verifying pleadings in criminal justice matters by police officers of whatever rank, that we consider imposing the same liability for truthfulness as is the case with a number of filings with government today which are not sworn to. Income tax returns, for example, the statement is under penalty of perjury, I do state or affirm that the foregoing is true, and it’s not sworn to before anybody. The penalty is precisely the same as if it were.86

The following week, on February 15, 1968, the acting President of the New York State District Attorneys Association, Michael Dillon, expressed concern that it was too difficult to expect misdemeanor informations to not contain hearsay allegations at arraignments.87 In reply, the Executive Director of the Commission, Mr. Denzer, suggested creating another instrument, something akin to a “short affidavit,” that could “show reasonable cause but that had to be replaced by a regular information” before trial.88 Mr. Denzer further suggested that this new short affidavit could statutorily allow the misdemeanor prosecution to go forward on uncorroborated accusations.89 This discussion surely contributed to the existing C.P.L. authorization to commence misdemeanor prosecutions with hearsay-riddled, uncorroborated complaints.

Conversely, and in protection of due process, Mr. Fabricant spoke on behalf of the New York Civil Liberties Union (NYCLU) during the same February 15 public hearing.90 During his appearance, Mr. Fabricant expressed serious objection to the removal of preliminary hearings in misdemeanor prosecutions.91 Highlighting that the accused’s opportunity for a preliminary hearing is “one of the most valuable rights in the Code of Criminal Procedure,” Mr. Fabricant reiterated that “[t]here are many, many people . . . who are arrested during the course of a year where the [e]vidence against them is wholly insufficient. They may be arrested on the complaint of a single witness where the evidence is insufficient.”92 He stressed that without a preliminary hearing, the accused (i) could be incarcerated for an indeterminate length of time before formal charges were filed,93 (ii) would suffer the consequences of the criminal accusation,94 or (iii) could even take a plea while being innocent of the charges,95 without there ever being a decision on whether “the complaint is wholly insufficient.”96

In response, the Commission members reminded Mr. Fabricant that only those accused in New York City were entitled to a misdemeanor preliminary hearing at the time, and even there, the provision was rarely used in practice.97 To that, Mr. Fabricant countered that “[t]here are many, many hearings held in the Criminal Court of the City of New York . . . and the fact is that there are many, many people dismissed at the conclusion of the preliminary hearing where the evidence is considered inadequate.”98 Mr. Fabricant continued that “[t]he fact is that before a defendant will take the risk of going to trial on the basis of a complaint which may be wholly insufficient,” the accused should be afforded a preliminary hearing to assert that insufficiency.99

Ten months later, after the Commission incorporated the first round of public comments, they held another set of public hearings.100 On December 13, 1968, Mr. Irving Lang spoke on behalf of the Bar of the City of New York.101 The Bar Association’s position was that, considering (i) the problem of obtaining a trial quickly in Criminal Court and (ii) the fact that a “substantial number of these misdemeanor cases [were] dismissed after a preliminary hearing,” the preliminary hearing should not be eliminated as the Commission proposed.102 When the Commission repeated that New York City was alone in providing preliminary hearings for misdemeanor prosecutions, Mr. Lang countered that “the fact that New York has a higher standard of justice than other States should not be looked upon negatively.”103

Subsequently, the Committee on Criminal Courts, Law and Procedure of the Association of the Bar of the City of New York issued a Special Report on the proposed C.P.L. within their 1969 Legislative Bulletin.104 In that report, the Committee made clear that “the misdemeanor preliminary hearing is an essential and critical part of the misdemeanor procedure in New York City and should be retained.”105 Citing that the misdemeanor preliminary hearing serves both the accused and the people of New York, the Committee articulated that:

In New York City, the hearing serves to promptly remove from the criminal process those cases which do not belong in the courts. Out of 119,000 non-traffic misdemeanor arraignments in 1967, the Criminal Court was able to dismiss 22,000 cases without trial and another 12,000 upon consent of the district attorney. Although it is impossible ascertain from these reports how many of the 22,000 dismissals were because of the failure of the complainant to appear, the death of the defendant, etc., it seems clear that the majority of the dismissals were due to the failure to make out a prima facie case at a preliminary hearing. It would appear that the estimate made by the Legal Aid Society of a dismissal rate of slightly more than 10% of the total complaints is a modest estimate.

The prompt removal of over 10% of the misdemeanor charges is absolutely essential to the continued functioning of a system already strained to the breaking point.

First and foremost it gives the defendant against whom even a prima facie case cannot be proven, the opportunity to be relieved of the spectre of a pending criminal charge and gives him prompt justice.

Secondly, it prevents the unjust incarceration of such a defendant if he is unable to raise bail—with the concomitant easing of overcrowding in the jail facilities.

Thirdly, it saves the repeated trial and motion calendaring of a case that would most assuredly result in eventual acquittal or dismissal at trial.

Fourthly, even in the case of the defendant held for trial after a preliminary hearing, there would appear to be a substantial time saving to everyone concerned. It has been demonstrated time and again that it is only the rare defendant who insists upon going to trial after he has been confronted at a preliminary hearing with the evidence against him. There is perhaps no factor more significant in the determination by a defendant to plead guilty than the realization that the prosecution has the evidence necessary to convict. This realization generally can be only by a preliminary processing where the defendant is brought face-to-face with reality.106

These debates highlight that one of the most controversial sections of the proposed C.P.L. was the elimination of the misdemeanor preliminary hearing in New York.107 Criticism of its proposed abolition continued to flow in from the NYCLU, the Legal Aid Society, the Vera Institute of Justice, the Citizens Union, and the like. The NYCLU, for example, declared the abolishment of the preliminary hearings in misdemeanor cases as “perhaps, the most critical in the entire Code” because the preliminary hearing “weeds out unfounded or malicious complaints” in a manner consistent with the adversary system of criminal justice.108

Unfortunately, however, these preliminary due process arguments were overpowered. In September of 1969, the Bartlett Commission released its final Proposed New York Criminal Procedure Law,109 and eliminated New York City’s preliminary hearings “by the simple process of not providing for it” in the final proposal.110 To justify their step backwards from due process, the Commission fell on judicial efficiency, stating that “[e]specially in urban communities where volume of cases is a significant factor in the administration of criminal justice, that rule has caused much practical difficulty.”111 In the end, despite the interest of justice concerns supporting the importance of misdemeanor preliminary hearings, the New York legislature enacted C.P.L. § 100.30 and codified the uncontested verification of misdemeanor prosecutions without any meaningful preliminary due process protection.112

After the enactment of the C.P.L., preliminary hearings were eliminated from the State of New York. This void, coupled with the correspondingly low standards for verification, had several concerning repercussions on the State’s misdemeanor criminal practice. First, verification became synonymous with “trial readiness” in many of New York’s Criminal Courts. Trial readiness, under the law, requires that the district attorney make a non-illusory statement that they are in fact ready to proceed to the trial, after having done all that is required to bring the case to a point where it may be tried.113 In reality, however, district attorneys routinely announce readiness for trial upon the moment they file a verified, non-hearsay accusatory instrument, without regard for whether they are actually prepared to try the case.114 In fact, many prosecutors announce that they are ready for trial at the moment of conversion, even if that moment is at arraignments and before the trial prosecutor has talked to the complainant in the case.115 It is to the detriment of, and frankly dangerous to, the unprotected accused that the prosecution is only required to obtain an unexamined verification signature from the complainant—not subject to cross-examination or contradiction—to meet the prima facie requirements of a prosecution.

This problem is compounded by the C.P.L.’s speedy trial laws. Once the prosecutor announces readiness for trial, the speedy trial clock can be tolled for months,116 without any intervening opportunity for the accused to contest the authenticity of, or motivation for, the complainant’s accusations.117 After the complaint is converted, the misdemeanor case is calendared for a variety of pre-trial procedures.118 These include demands to produce discovery, requests for bills of particulars, pre-trial motions and suppression hearings, and requests for continuances by either party.119 Months pass before the case is even calendared for trial.120 Even then, once the case is finally ripe for trial—many months after the accused was arraigned on the accusations—the witnesses oftentimes fail to appear in court and the prosecutors find themselves not ready to proceed for lack of witnesses to testify to the allegations.121

In People v. Ramos, for example, Ms. Ramos was arraigned on a verified misdemeanor information on July 5, 2013 and the prosecutor announced ready for trial on that date.122 For the next four and a half months, the case was adjourned for pre-trial procedures, during which time the speedy trial clock was tolled.123 On November 19, 2013, Ms. Ramos returned to court for trial but the prosecutors were not ready to proceed.124 She subsequently returned to court for trial five times over the next ten months, before the case was ultimately dismissed on November 5, 2014.125 During the fifteen months she suffered her misdemeanor prosecution, Ms. Ramos never had an opportunity to confront her accuser or testify to her innocence.126 Importantly, Ms. Ramos’ experience was not an isolated situation; New York prosecutors play with the C.P.L. § 30.30 speedy trial clock in countless prosecutions throughout the state, dragging the accused through seemingly endless prosecutions that ultimately result in pre-trial dismissals.127

While this may seem like a small price to pay in the pursuit of justice, months of unnecessary and uncontested criminal prosecutions fall on the shoulders of New Yorkers. New York State taxpayers foot the bill for judges, court attorneys, court clerks, court officers, prosecutors, public defenders and the department of corrections to participate in months of misdemeanor prosecutions for cases that are ultimately dismissed.128 Moreover, when the misdemeanor prosecution forces the accused into civil court systems or social services, such as housing, family and immigration courts, or homeless shelters, unemployment services and food banks, the exponential expense to society becomes unjustifiable and incomprehensible.129

Stranger still is the fact that the authenticity of any verification is rarely questioned in court, and the penalty of perjury, designed to protect against untruthful attestations, is largely unenforced in the context of accusatory instruments. Under the New York State Penal Law § 210.45: “A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.”130 This form of perjury is a class A misdemeanor, punishable by up to one year of incarceration.131 In practice, this crime is often charged when a person lies directly to the police and upon investigation, the police catch the liar before they arrested the falsely accused.132 Rarely, however, is a complainant, who falsely signed an accusatory instrument or supporting deposition, ever prosecuted for their perjurious offense.

In fact, it is common prosecutorial practice to file a superseding misdemeanor information on the eve of trial,133 where: (i) the complainant initially signs a supporting deposition under penalty of perjury, (ii) the accused endures a lengthy prosecution based on false or inaccurate statements, and (iii) just before trial, the prosecution files a superseding information with altered allegations that are again verified by the very same complainant.134 The courts accept these superseding informations, without recognizing and examining the concern that the original accusations were verified—either fraudulently or unwittingly—by the central witness in the case.135 Ultimately, since the penalty of perjury is not enforced in reality,136 the threat of perjury prosecution is largely meaningless as a protection against baseless accusations lodged against the accused.

Notably, New York State does not accept such minimal standards of reliability in other areas of criminal law. As the Court of Appeals summarized in People v. Brensic, “[o]ut-of-court statements introduced to prove the truth of the matters they assert are hearsay. They may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable.”137 “Reliability” is only established if the hearsay evidence falls within a specific categorical exception.138 Hearsay exceptions in New York include present sense impressions,139 dying declarations,140 business records,141 and excited utterances.142 Unless the out-of-court statement falls into one of these accepted categories, the statement is deemed too unreliable to present at a misdemeanor trial or in front of a felony grand jury.143 Moreover, even if the evidence falls within a hearsay exception, the accused cannot be denied their Confrontation Clause rights to cross-examine the witnesses against them through an adversarial process.144

Despite these evidentiary protections against hearsay evidence at trial or in the grand jury, hearsay is accepted for misdemeanor accusatory instruments. When a prosecutor files a verified misdemeanor information or supporting deposition with the court, the statements within that document are hearsay by definition: they are out-of-court statements offered to the court for the truth of the matters asserted.145 In any other criminal forum, unless they qualify for a hearsay exception, these statements would be inadmissible due to their unreliability.146 The declarants of those statements would have to present themselves in court to testify in person, under a sworn oath, and be subject to cross-examination.147 Astonishingly, however, no comparable reliability standard exists for misdemeanor informations, as long as the document or its supporting depositions have been verified according to the C.P.L. Thus, a complainant can make any accusations within the four corners of the accusatory instrument and, as long as he or she signs the document under an impotent penalty of perjury, the court may accept the hearsay and proceed with the prosecution as if the unreliability has been cured.148

New York must reevaluate the lack of any meaningful preliminary due process protections for the misdemeanor accused. The detrimental consequences of the myth of preliminary due process for misdemeanor prosecutions are too great, particularly given how many misdemeanor charges are ultimately dismissed without a conviction or trial. Of course, the most responsive solution would be to reinstate preliminary hearings for all misdemeanor prosecutions throughout the State. At the very least, preliminary hearings should be afforded to all misdemeanor accused who are incarcerated pre-trial or who can show they suffer notable hardship due to the prosecution.

If New York’s legislators need an example, they can turn to the Federal Rules of Criminal Procedure (F.R.C.P.). Under the F.R.C.P., all criminal complaints must be sworn under oath before a magistrate judge.149 Even if the complainant does not appear in person before a magistrate judge, a judicial officer must administer a formal oath or affirmation before the prosecution can go forward.150 In federal court, it is not enough for a complainant to merely sign an accusatory instrument without any form of review or oversight.

Once the federal magistrate administers the formal oath upon the complainant and the misdemeanor prosecution commences, the judge must inform the accused of their rights.151 This often includes the right to a preliminary hearing under F.R.C.P. § 5.1.152Fed. R. Crim. P. 58(b)(2)(G).}} Under F.R.C.P. § 5.1, the accused is entitled to a public, preliminary hearing before a federal magistrate, as long as the individual is charged with a “non-petty offense.”153 With a few exceptions, these preliminary hearings must take place “within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody.”154 

This preliminary hearing “is a formal, adversarial hearing at which the defendant is entitled to be represented by an attorney, to cross-examine witnesses, and to introduce evidence.”155 The hearing is required unless waived by the defendant or the prosecutor files an indictment or information before the hearing, which renders the preliminary hearing unnecessary because a formal probable cause determination has already taken place.156 Once the magistrate judge has heard the preliminary hearing, the court must either find that there is probable cause to prosecute the defendant for the offense, or must dismiss the complaint outright.157 This is the practice in the District of Columbia, for example, where any misdemeanor prosecution filed by a complaint requires that the accused is afforded a preliminary hearing.158 Since a misdemeanor complaint is “merely sworn to by a complaining witness, who may or may not have firsthand knowledge of the facts asserted,”159 the accused has the right to a preliminary hearing to contest the probable cause for the prosecution in the first place.

Of course, instating the right to a formal and adversarial preliminary hearing in misdemeanor prosecutions would require legislative action. Thus, while waiting for the political will to afford the accused adequate due process, there is a tool—albeit rarely used and at high risk—available to the defendant within the existing criminal code. C.P.L. § 170.25 authorizes divestiture of jurisdiction by indictment, meaning that the accused can move to transfer their case from a Criminal Court to a Superior Court to have their case presented to a grand jury.160 Upon a motion by the accused “showing good cause to believe that the interests of justice so require,” the Superior Court can order the prosecutor to present the misdemeanor case to the grand jury to be prosecuted by indictment.161 Once the misdemeanor case is in Superior Court, the allegations must either be indicted by a grand jury’s finding of probable cause or be dismissed.162

There are significant risks to calling upon this divestiture statute, however. First, the motion for grand jury action suspends the speedy trial clock and could prolong the prosecution.163 Second, by requesting a probable cause determination by the grand jury, the accused is exposing him or herself to the possibility of an indictment on felony charges instead.164 Third, there is no appellate authority on what constitutes a showing of “good cause to believe that the interests of justice so require.”165 Thus, after making the C.P.L. § 170.25 motion, the accused may experience a longer prosecution and increased pre-trial detention, only to find that the Superior Court does not agree that there is good cause to remove the case from the misdemeanor Criminal Court. Finally, even if the court grants the C.L.P. § 170.25 motion, the accused is only afforded the right to a non-adversarial grand jury proceeding, where there is no right to cross-examination.166

Ultimately, in the interest of justice, fairness and resource efficiency, the New York Legislature should reinstate and expand the misdemeanor preliminary hearing to the entire State. A preliminary hearing would give the accused the opportunity to establish, at the onset of the prosecution, whether or not there is probable cause for his or her continued detention and prosecution, and give him or her the chance to question the foundation upon which the allegations have been lodged. Although the preliminary hearing would add a procedural step to an overburdened criminal justice system, it would also eliminate prolonged prosecutions and unnecessary court appearances for all those cases that are ultimately dismissed. The formal questioning, cross-examination and introduction of contradictory evidence in a preliminary hearing would elicit (i) which allegations will never succeed at trial, and (ii) which witnesses will never assert their allegations under oath in a court. Essentially, the hearing would protect against complainants who make initial uncontested allegations, with no intention of ever pursuing the accusations to trial.

If almost 40 percent of all misdemeanor prosecutions are ultimately dismissed in New York,167 the State’s criminal justice system could benefit from the early removal of frivolous prosecutions from the courts. Moreover, “[t]o rely entirely upon the goodwill or the discretion of the prosecutor in selecting for prosecution only those complaints which are based upon sufficient evidence is wholly inconsistent with an adversary system of criminal justice.”168 Therefore, rather than continue to waste public resources on baseless misdemeanor charges that drag the accused through the prolonged and compounding detrimental consequences of prosecution, New York should reenact the misdemeanor preliminary hearing “to assure that every defendant a prompt, judicial determination of probable cause prior to trial.”169