On July 25, 2016, Defendant was arraigned on charges of Operating a Motor Vehicle While Under the Influence of Alcohol as an E Felony (Vehicular and Traffic Law (VTL) §1192[3]), Operating a Motor While Under the Influence of Alcohol or Drugs (VTL §1192[1]), Obstructing Governmental Administration in the Second Degree (Penal Law (PL) §195.05), Resisting Arrest (PL §205.30), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL §511[1][A]), Harassment in the Second Degree (PL §240.26[3]), Unlicensed Operator (VTL §509[1]) and Unlawful Possession of Marihuana (PL §221.05). By Notice of Motion filed on June 10, 2018, Defendant moves for an order vacating the plea Defendant entered on September 12, 2017. For the reasons set forth, Defendant’s motion is granted.FACTUAL BACKGROUND AND PARTIES CONTENTIONSDuring Defendant’s arraignment on July 25, 2016, the People moved to reduce the sole felony charge on the complaint, Operating a Motor Vehicle While Under the Influence of Alcohol as an E Felony (VTL §1192[3]), to a misdemeanor count of Driving While Intoxicated under VTL §1192.3. The presiding judge crossed out the felony charge and made a notation. However, the parties dispute the content of this notation: Defendant asserts that the judge only wrote her initials while the People maintain that the judge wrote “A MISD + STRIKE.” It is undisputed that the judge wrote “ã move to strike 1192(3) E felony + leave it as Misd” in the comments section of the arraignment sheet.Defendant argues that the presiding judge’s notations did not properly reduce the felony to a misdemeanor pursuant to Criminal Procedural Law (CPL) 180.50(3)(a)(iii). Defendant states that there are no markings on the charging document itself which indicate that the felony Driving While Intoxicated was reduced to a misdemeanor and the notations in the comments section of the arraignment sheet are legally insufficient to cure this defect. Defendant concludes that her plea cannot constitute a waiver of the reduction requirements set forth in CPL 180.50 and the felony complaint should be reinstated.In response, the People state that Defendant incorrectly believes that the judge made no markings on the charging document itself to indicate that the Driving While Intoxicated charge was reduced to a misdemeanor. The People assert that although written in cursive, the words “A MISD + STRIKE” are clearly discernable on the complaint and are sufficient to reduce the charge. The People otherwise maintain that Defendant entered her plea voluntarily, knowingly, and intelligently and the judgment of conviction should not be reversed.DISCUSSIONThe requirements of CPL 180.50(3)(a)(iii) were reaffirmed in the Appellate Term’s holding in People v. Minor:“A felony complaint may only be converted to a misdemeanor accusatory instrument pursuant to CPL 180.50. Insofar as is relevant herein, a felony complaint may be reduced to a misdemeanor instrument by making notations either upon or attached to the felony complaint which make the necessary and appropriate changes in the title of the instrument and in the names of the offenses charged (CPL 180.50[3][a][iii]). A notation in the court docket is without effect. An attempted reduction of a felony complaint, even though acquiesced to by defendant, not done pursuant to the requirements of CPL 180.50 is invalid and of no legal effect and the felony complaint remains pending” (People v. Minor, 144 Misc 2d 846, 848 [App Term, 2d Dept, 1989]).Prior to this decision, it was common practice in the lower courts to reduce felony complaints by making notations in the court docket and attaching a misdemeanor court action sheet (blueback) with the defendant’s name and the misdemeanor charges to the case file without actually marking the felony complaint (People v. Lehrer, 144 Misc 2d 701, 705 [Crim. Ct., New York County 1989]). Although it was arguable that this substantially complied with the statute (People v. Torres, 109 Misc 2d 800, 802-803 [Crim Ct, Bronx County 1981]), the ruling in People v. Minor called for stricter adherence to the writing requirements of CPL 180.50(3)(a)(iii) (People v. Lehrer, 144 Misc 2d at 705).Consistent with the ruling in People v. Minor, the court must make clear and distinct court notations either on or attached to the accusatory instrument in order to meet the requirements of CPL 180.50(3)(a)(iii). Even if minimal, language and notations that clearly and distinctly demonstrate the accusatory instrument’s reduction to a misdemeanor complaint has been held to comply with CPL 180.50(3)(a)(iii) (People v. Chernek, 56 Misc 3d 85, 88-89 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [holding that the court still properly reduced felony complaint by crossing out only some of the felony charge language and replacing "FELONY" with "MISD" in the caption of the accusatory instrument]; People v. Harding, 50 Misc 3d 1209[A] [Crim Ct, Kings County 2016] [holding that court properly reduced felony complaint by stamping "Dismissed by People" adjacent to crossed-out felony charges and writing "SSI" across felony complaint to indicate the People filed a simultaneous superseding information]).In contrast, courts have found that cryptic and ambiguous court notations, even when made on the accusatory instrument itself or attached thereto, failed to properly reduce the felony complaint to a misdemeanor (People v. Jones, 151 Misc 2d 582 [App Term, 2d Dept, 2d & 11th Jud Dists 1991] [holding that even if attached to the felony complaint, court's notations did not reference all felonies and were thus too ambiguous to reduce complaint to misdemeanor]; People v. Liburb, 182 Misc 2d 356, [Crim Ct, Bronx County 1999] [holding that notations on accusatory instrument made in different ink colors and handwriting and neither dated nor initialed were too cryptic to be given legal effect]).In the present case, the court finds that there was no effective reduction of the felony charge to a misdemeanor. It is not sufficiently clear from the notation on the accusatory instrument that the felony charge was reduced to a misdemeanor. Contrary to the People’s presumption, the words “A MISD + Strike” are not written beside the crossed-out felony charge on the complaint. Rather, the court finds the words “ã move to strike” to be more clearly discernable. This notation alone failed to reflect the appropriate reduction of the felony charge to a misdemeanor under CPL180.50(3)(a)(iii).The prevailing legal framework, as demonstrated by the foregoing precedent, mandates strict compliance with CPL 180.50(3)(a)(iii). Consequently, the court’s notation on the arraignment sheet, “ã move to strike 1192(3) E felony + leave it as Misd,” cannot cure the deficiency of the notation on the accusatory instrument. Even if unambiguous, notations on the court docket cannot be given legal effect (People v. Minor, 144 Misc 2d at 848; People v. Lehrer, 144 Misc 2d at 705). Furthermore, this defect is non-waivable, even though acquiesced to by Defendant (People v. Grune, 175 Misc 2d 281 [App Term, 2d Dept, 1997]; People v. Jones, 151 Misc 2d at 584).CONCLUSIONBased on the foregoing, Defendant’s motion to vacate her plea is GRANTED. Defendant’s plea is vacated and the original felony complaint is reinstated.This constitutes the Decision and Order of the Court.Dated: November 1, 2018
