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People v. Pierce

February 16, 2010

THE PEOPLE &C., RESPONDENT,
v.
MARCELLUS PIERCE, APPELLANT.



The opinion of the court was delivered by: Graffeo, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Defendant waived indictment and pleaded guilty to a superior court information (SCI) charging him with two offenses: grand larceny in the fourth degree, an offense for which he had been held for action by the Grand Jury in a superior court felony complaint; and criminal possession of stolen property in the third degree, a charge included on the theory that it was joinable with the grand larceny offense under Criminal Procedure Law §§ 195.20 and 200.20(2)(c). Because the criminal possession offense was not properly joined with the grand larceny charge, defendant's conviction must be reversed and the SCI dismissed.

The charges in this case arose from allegations that defendant committed two unrelated crimes in 2007. In January 2007, the People contend that defendant stole $1,100.00 by deceiving the victim into turning over his bank card and then withdrawing funds from the victim's account. In connection with this incident, in addition to misdemeanor offenses charged in separate accusatory instruments, a felony complaint was filed in Buffalo City Court charging defendant with grand larceny in the fourth degree (Penal Law § 155.30[1]). A few weeks later, defendant was allegedly found in possession of a vehicle that had previously been reported stolen. Defendant purportedly attempted to flee when stopped by the police and, after being placed under arrest, he was found with a pipe containing crack cocaine residue. This circumstance resulted in the filing of a felony complaint in Buffalo City Court charging defendant with criminal possession of stolen property in the fourth degree (Penal Law § 165.45[5]), as well as various misdemeanor charges.

On separate dates, defendant was arraigned on each set of charges in Buffalo City Court. Thereafter, defendant was held for action of the Grand Jury on the felony offenses and those matters were divested to Supreme Court. The local court felony complaint pertaining to the grand larceny charge was subsequently dismissed and, pursuant to a plea agreement reached with the defense, the District Attorney filed a new superior court felony complaint charging defendant with grand larceny in the fourth degree. In open court, defendant signed a written waiver of indictment and agreed to be prosecuted by SCI charging him with the same offense in the superior court felony complaint -- grand larceny in the fourth degree -- together with an additional offense of criminal possession of stolen property in the third degree. Defendant then allocuted to his guilt on both charges with the understanding that concurrent sentences would be imposed and he would be treated as a second felony offender rather than a persistent felony offender. At sentencing, defendant was adjudicated a second felony offender based on two prior felony convictions and Supreme Court imposed the agreed-upon sentence of three-and-a-half to seven years on the possession of stolen property count and one-and-a-half to three years on the grand larceny count, to be served concurrently.

Although he had waived his right to appeal when he entered his guilty plea, defendant appealed his conviction and, relying on our decision in People v Zanghi (79 NY2d 815, 817 [1991]), argued to the Appellate Division that the criminal possession of stolen property count was not properly included in the SCI because that offense was a class D felony -- a crime of a higher degree than the grand larceny offense, a class E felony. The Appellate Division affirmed the conviction and a Judge of this Court granted defendant leave to appeal.

The requirement that felony charges be prosecuted by indictment is grounded in the New York Constitution which, since 1974, has contained an exception allowing defendants to waive indictment under certain circumstances. Article I, § 6 provides:

"No person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury, except that a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel" (NY Const art I, § 6).

Enacted to implement the constitutional amendment, Criminal Procedure Law article 195 established a procedure that allows for the waiver of indictment and prosecution by a new form of accusatory instrument -- a superior court information defined in Criminal Procedure Law § 200.15 (see L 1974, ch 467). CPL 195.10 states that "[a] defendant may waive indictment and consent to be prosecuted by superior court information when: (a) local criminal court has held the defendant for the action of a grand jury; and (b) the defendant is not charged with a class A felony . . .; and (c) the district attorney consents to the waiver."*fn1 CPL 195.20 directs that the waiver of indictment shall be in writing and further authorizes that "[t]he offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40."

For purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the "same offense" and may be substituted for the original charge in a waiver of indictment and SCI (see People v Menchetti, 76 NY2d 473 [1990]). But there is an exception to this rule when the felony complaint charges a class A felony for which waiver of indictment is not permitted. In that case, a defendant generally may not agree to be prosecuted on an SCI that contains a lesser included offense since such a substitution would be nothing more than an "end run" around the statutory prohibition against the use of a waiver of indictment by a defendant held for Grand Jury action on a complaint charging such a class A felony (see People v Truelock, 88 NY2d 546 [1996]; cf. People v D'Amico, 76 NY2d 877 [1990]).

"[T]he basic objective of article 195 was to permit waiver of indictment for defendants who wished to go directly to trial without waiting for a Grand Jury to hand up an indictment to do so . . . The statutory procedures were thus aimed at affording a defendant the opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings" (People v Boston, 75 NY2d 585, 588-589 [1990] [internal citations and quotation marks omitted]). The bill jacket for the legislation creating CPL article 195 also indicates that the new procedure was intended to facilitate plea bargaining (Mem of Law Revision Commission, Bill Jacket, L 1974, ch 467, at 6).

In this case, it is undisputed that the waiver of indictment and SCI were intended to effectuate a plea agreement between the People and the defense. In separate accusatory instruments, defendant was charged in local criminal court with grand larceny in the fourth degree, a class E felony relating to the theft incident, and criminal possession of stolen property in the fourth degree, a class E felony arising from the motor vehicle incident. The People then filed a superior court felony complaint charging defendant with the same fourth-degree grand larceny offense for which he had been held for action of the Grand Jury and defendant waived indictment and agreed to be prosecuted by SCI for that offense and the third-degree stolen property charge.

In placing those two offenses in the same SCI, the People relied on the joinder provision in CPL 195.20 directing that offenses for which indictment may be waived "include any offense for which the defendant was held for action of a grand jury" (here, the grand larceny offense in the superior court felony complaint) "and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40." The People's theory was that the stolen property charge could be joined with the grand larceny offense under CPL 200.20(2)(c) because the two offenses were "the same or similar in law." By consenting to plead guilty under these circumstances, defendant avoided multiple prosecutions and the probable imposition of consecutive sentences in the event of his conviction on two unrelated crimes. He also secured a promise that he would be sentenced as a second felony offender. Of course, the fact that the plea may have been beneficial to both parties does not preclude a subsequent challenge to the jurisdictional validity of the SCI. Our precedent makes clear that the parties must comply with the constitutional and statutory requirements relating to waiver of indictment; in this context, advantageous ends do not justify improper means.

On appeal in this Court, defendant challenges the validity of the waiver of indictment and SCI on three grounds.*fn2

First, based on our decision in Zanghi, he argues that the inclusion of the third-degree possession of stolen property offense in the SCI was improper because that charge is of a higher grade than the grand larceny offense charged in the superior court felony complaint. Next, even if reversal is not warranted under Zanghi, he asserts that the joinder of the possession of stolen property offense with the grand larceny charge in the SCI did not meet the requirements of CPL 200.20(2)(c). Finally, if joinder was proper under CPL 200.20(2)(c), he maintains that CPL 195.20 is unconstitutional insofar as it purports to allow waiver of indictment and prosecution by SCI for "joined offenses" that were not previously charged in a felony complaint. We conclude that our decision in Zanghi does not compel a reversal but we agree that joinder of the criminal ...


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