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People v. Fernandez

March 9, 2010

THE PEOPLE, ETC., RESPONDENT,
v.
JOAO FERNANDEZ, APPELLANT.



APPEAL by the defendant from a judgment of the Supreme Court (Esther M. Morgenstern, J.), rendered November 26, 2007, in Kings County, convicting him of attempted aggravated harassment in the second degree (three counts), after a non-jury trial, and imposing sentence.

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

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

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

WILLIAM F. MASTRO, J. P., STEVEN W. FISHER, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, JJ.

(Ind. No. 20016V-07)

OPINION & ORDER

The principal issue presented on this appeal, which is one of first impression for this Court, is whether CPL 210.05 precludes the Integrated Domestic Violence (hereinafter IDV) Part of the Supreme Court from exercising its jurisdiction under the New York State Constitution to try misdemeanor charges against a defendant in the absence of an indictment or a superior court information. We hold that it does not.

The defendant was charged with, inter alia, harassment in the second degree based on numerous harassing and threatening telephone calls he allegedly made to Margaret Leszcynska, his former paramour, with whom he had two children. Specifically, on January 18, 2007, a misdemeanor complaint was filed charging the defendant with harassment in the second degree (see Penal Law § 240.26[1]) and aggravated harassment in the second degree (three counts) (see Penal Law § 240.30[1][a], [b]; [2]). By order dated January 31, 2007, the action was transferred from the Criminal Court, Kings County, to the IDV Part of the Supreme Court, Kings County. The misdemeanor complaint was converted to an information by the complainant's attestation dated February 7, 2007. After a non-jury trial, the court convicted the defendant of three counts of attempted aggravated harassment in the second degree.

The defendant argues for the first time on appeal that the IDV Part of the Supreme Court, to which his case was transferred from the Criminal Court, lacked jurisdiction over the instant matter because neither a grand jury indictment nor a superior court information was filed by a district attorney, as required by CPL 210.05, and he never waived his right to an indictment by a grand jury. Moreover, the defendant contends that there was no legislative mandate authorizing the transfer.

Preservation

As a threshold matter, we agree with the defendant that his contention regarding the jurisdiction of the IDV Part may properly be raised for the first time on appeal. The preservation rule does not apply to errors that "affect the organization of the court or the mode of proceedings prescribed by law" (People v Agramonte, 87 NY2d 765, 769 [internal quotation marks omitted]; see People v O'Rama, 78 NY2d 270, 277; People v Ahmed, 66 NY2d 307, 310; People v Garbutt, 42 AD3d 665, 667). Such errors fall into a "very narrow category of cases" (People v Kelly, 5 NY3d 116, 119). The Court of Appeals has held that, in general, errors that fall under the exception exist "where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, non-waivable defect in the mode of procedure" (People v Patterson, 39 NY2d 288, 295). The exception to the general rule was created "to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute" (id. at 295-296). However, the exception only applies to errors that "go[ ] to the essential validity of the [process and are so fundamental that] the entire trial is irreparably tainted'" (People v Casey, 95 NY2d 354, 366, quoting People v Agramonte, 87 NY2d at 770; see People v Kelly, 5 NY3d at 119-120; People v Patterson, 39 NY2d at 295-296).

Here, the defendant's contention that the Supreme Court was not competent to entertain the action in the absence of an indictment or a superior court information as required by CPL 210.05 raises the issue of the court's jurisdiction and, thus, preservation was not required (see People v Wiltshire, 23 AD3d 86, 88 [preservation not required where defendant claimed Supreme Court lacked jurisdiction over his case as a whole and, specifically, to accept his plea to a felony complaint]; People v Jones, 18 Misc 3d 63, 64-65 [reaching defendant's unpreserved claim that Supreme Court never acquired jurisdiction over his case because it was not initiated by indictment or superior court information as required by CPL 210.05]; see also People v Ahmed, 66 NY2d 307, 310 [mode of proceedings errors include "trial before a court not of competent jurisdiction"], citing People v Bradner, 107 NY 1, 4).

Jurisdiction of Supreme Court

The Supreme Court has general original jurisdiction in law and equity (see NY Const, art VI, § 7[a]; Sohn v Calderon, 78 NY2d 755, 766; Kagen v Kagen, 21 NY2d 532, 536) and is " competent to entertain all causes of action unless its jurisdiction has been specifically proscribed'" (Sohn v Calderon, 78 NY2d at 766, quoting Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166; see Judiciary Law § 140-b; Matter of H.M. v E.T., 65 AD3d 119, 123). "[A]ny attempt by the Legislature to abridge, limit or qualify this broad jurisdiction of the Supreme Court ...


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