The case of Matthew Jones is one of those that reduces the criminal courts to a bit of a joke.  You remember Jones, who was charged with  the crime of standing around Times Square.  After three years, the Court of Appeals  finally held that standing was not a crime.

At Judicial Reports, the Jones case was traced back to its start, where defense counsel moved to dismiss the complaint for facial insufficiency.  The Judge sitting at arraignments that day was Abe Clott.  Judge Clott is a smart judge and one of my favorite choices for the criminal court bench in a while.  He was smart when he was a federal defender in the Eastern District of New York (Brooklyn, for people in Nebraska), where he was dedicated, enthusiastic and hard-working.  And he kept those qualities when he put on the robe, unlike some others.

Now one would think that if any judge would have tossed the Matthew Jones complaint out on its ear, it would be Judge Abe Clott.  And that was the original position at Judicial Reports. 

Then, somebody whispered in their ear that it wasn’t Judge Clott’s fault, because he was precluded from tossing the complaint for facial insufficiency by Criminal Procedure Law 170.30.  This parenthetical then appeared:

(Since the initial publication of this story on December 19, new information has come to Judicial Reports’ attention, as follows: Whether or not he agreed that the disorderly conduct charge was facially insufficient, Judge Clott was prohibited from dismissing it on those grounds at arraignment.

New York Criminal Procedure Law 170.30 states that motions to dismiss on such grounds can be submitted only after arraignment. Court records show that Jones pleaded guilty at arraignment after Clott denied Dorsch’s motion, effectively closing the option of dismissal on grounds of facial insufficiency. Ultimately, as the question of dismissal was moot once Jones took a plea, the Court of Appeals vacated the conviction on grounds that the charge was facially insufficient.)

True, but wrong.  While the statute provides for a mechanism to move for dismissal, it has nothing to do with the most fundamental gatekeeper responsibility of a judge sitting at arraignment.  The first thing a judge must do is determine that jurisdiction exists to exert the power of the state over the individual.  To do that, the judge must make the basic decision that the allegations against the person standing before him constitutes a facially sufficient crime.

The issue of a dismissals based on facial insufficiency was at the heart of Fitzpatrick v. Rosenthal, here Syracuse city court judge was attacked by the local district attorney for not agreeing to be a rubber stamp to his underhanded tactics.  When Judge Kate Rosenthal was going to dismiss a complaint, and discharge the defendant from custody, for facial insufficiency, the DA wanted to tell the judge “secret facts” to convince her that the complaints were not facially insufficient, with the proviso that she keep the “secret facts” to herself and not reveal them to defense counsel.  Judge Kate wasn’t biting, so the District Attorney, William Fitzpatrick, decided to bite Judge Rosenthal instead.

As discussed in this Fourth Department decision, it is a basic function of the arraigning “neutral magistrate” to make a threshold determination that the allegations facially constitute a crime, before subjecting someone to the jurisdiction of the court.  Kate Rosenthal understood this.  Did Judge Clott?

And just in case someone is wondering, so why didn’t anyone in New York think to put something about this in the statute if it’s such a basic thing, they did.  Criminal Procedure Law 140.30 provides:

If a local criminal court accusatory instrument  filed  with  a  local
  criminal  court  pursuant  to  section  140.20,  140.25 or 140.40 is not
  sufficient on its face, as prescribed in  section  100.40,  and  if  the
  court  is satisfied that on the basis of the available facts or evidence
  it would be impossible to draw and file an accusatory  instrument  which
  is  sufficient  on  its face, it must dismiss such accusatory instrument
  and discharge the defendant.

So just in case any of you judges think that you lack the authority to toss a garbage complaint and subject a person to the rigors of prosecution, to incarceration or bail, to hiring counsel and going to court lest a warrant be ordered, you don’t.  You have not only the right, but the duty, to throw out a complaint like the one in Jones, and save some human being from being put through the judicial saw mill needlessly.