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Arraignment Timing

I practice Criminal Law. I have a client arrested for breach of peace whose arraignment is not scheduled until November—the arraignment was continued several times by the Court because of Court closures caused by the pandemic. The Court for this case remains closed to the public but some of the cases are being docketed for people to appear at another location. The client is not in custody. The client suggests that his case should be dismissed because the arraignment is taking too long, he wants this over with as soon as possible and he wants to know whether I could move for a dismissal of the charges based on a lengthy time to arraignment. I have not been able to fashion an argument whereby because of this delay the charges should be dismissed.

Relevant Statutory Law and Court Orders

My client has been charged with breach of peace in violation of Conn. Gen. Stat. § 53a-181, which provides:

(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.

(b) Breach of the peace in the second degree is a class B misdemeanor.

Arraignment in Connecticut is governed by Conn. Gen. Stat. § 54-1g(a), which provides:

(a) Any arrested person who is not released sooner or who is charged with a family violence crime as defined in section 46b-38a or a violation of section 53a-181c, 53a-181d or 53a-181e shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized, or has escaped or is otherwise incapacitated, the person shall be presented, if practicable, to the first regular sitting after return to police custody.

The statute does not speak to those who are not held in custody after arrest. Conn. Gen. Stat. § 54-1h deals with misdemeanor charges, such as 53a-181, and provides:

Any person who has been arrested with or without a warrant for commission of a misdemeanor, or for an offense the penalty for which is imprisonment for not more than one year or a fine of not more than one thousand dollars, or both, may, in the discretion of the arresting officer, be issued a written complaint and summons and be released on his written promise to appear on a date and time specified. If any person so arrested and summoned fails to appear for trial at the place and time so specified, or on any court date thereafter, a warrant for his rearrest or a capias shall be issued and he shall also be subject to the provisions of section 53a-173.

The Connecticut Practice Book § 37-1 provides:

A defendant who is not released from custody sooner shall be brought before a judicial authority no later than the first court day following arrest. Any defendant who is hospitalized, has escaped, or is otherwise incapacitated shall be presented no later than the next court day following such defendant’s medical discharge or return to police custody. A defendant not in custody shall appear for arraignment in person at the time and place specified in the summons or the terms of release, or at such other date or place fixed by the judicial authority.

Pursuant to a July 24, 2020 Connecticut Court Order 0043 effective March 24, 2020, Section 1-9C, the Chief Administrative Judge of each division has the authority to adjust or suspend any time or location requirement in the Practice Book. Practice Book § 37-1 is one of the sections specifically listed as being affected by such authority.

The various continuances of all cases in the State of Connecticut are being made by the Judicial Authority of the State of Connecticut.

Discussion:

I could not find any case in Connecticut that dealt with the highlighted Practice Book language, the situation where a defendant was not in custody, or discussed the timing of arraignment of an individual not being held in custody.

“A defendant who is not released from custody sooner shall be brought before a judicial authority no later than the first court day following arrest. Any defendant who is hospitalized, has escaped, or is otherwise incapacitated shall be presented no later than the next court day following such defendant’s medical discharge or return to police custody. A defendant not in custody shall appear for arraignment in person at the time and place specified in the summons or the terms of release, or at such other date or place fixed by the judicial authority.” 4 Conn. Prac., Criminal Procedure § 37-1 (4th ed.) Connecticut Practice Series, 9-20-2020, Criminal Procedure, Hon. David M. Borden, Hon. David P. Gold. Chapter 37. Arraignment.

The arrest in my example is one where the defendant is not kept in custody and is required to appear for arraignment in person at the time and place specified in the summons or the terms of release or by the Judicial Authority. When the defendant is released it is usually upon a promise to appear, which specifies the arraignment date. If he posts a bond then the same thing happens. Or he may appear before a magistrate or judicial authority after his arrest who orders his arraignment date.

Arraignment is a formal reading of a criminal charging document in the presence of the defendant, to inform him of the charges against the defendant. In response to arraignment, the accused is expected to enter a plea. Wikipedia Arraignment is the procedure by which a defendant is advised of the charges against him and enters a plea. See Bewry v. Commissioner of Correction, 121 Conn.App. 259, certification denied, 297 Conn. 918 (2010). In Connecticut when I appear for the first time with my client in Arraignment Court the Clerk can read the charges to my client. However, I waive a reading of the information of the charges, enter a plea of Not Guilty and enter a pro forma plea of Not Guilty to the charges and a Request for a Jury Trial. I waive a reading of the information because I already know what the charges are.

The pandemic has delayed arraignments and in many cases they are pushed out or scheduled several months away from the initial arrest. The person has been arrested but the matter is pushed out a ways. However, when the person was arrested he was given a summons or a notice of rights form or his bond release documents, all of which apprise him of the charges against him.

I assume a court would infer that arraignment must occur within a “reasonable” time after arrest, notwithstanding the absence of any such language in the statutes or Practice Book. In another context (compliance with boating regulations), the statute directs that a commissioner consider “all relevant factors” in setting a reasonable time for compliance. Conn. Gen Stat. Sec. 15-176.

In my case, the court would likely consider the unprecedented effects of the pandemic in the determination of my client’s November arraignment date. Since, March 2020, the U.S. and Connecticut have experienced a pandemic, which continues today and which in the interests of safety require the closure of public institutions to protect the lives of its citizens. Such a delay may cause a person to want matters over quickly or cause some form of anxiety. However, that might be how one feels when arrested for a crime he believes he did not commit. Nevertheless, based upon the existing law it would be hard to conclude that the delay would warrant a dismissal of the charges. At this point in time, it does not appear to me that the Courts would consider dismissal of the charges some form of a Constitutional necessity. If a defendant wants a speedy conclusion he/she could request a speedy trial; however, in that case the congregation of court personnel and jurors could be delayed for similar reasons—chaos caused by the pandemic. Any argument for dismissal based on an untimely arraignment would have to be made from analogous constitutional or fundamental rights, which I do not see now.

STEVEN TOMEO, ESQ.

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