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People v. Ashe

June 10, 2010

THE PEOPLE OF THE STATE OF NEW YORK, SCI RESPONDENT,
v.
DWIGHT ASHE, DEFENDANT-APPELLANT.



Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered January 26, 2007, convicting defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of 2 to 7 years, reversed, on the law, the plea vacated, the superior court information dismissed, and the matter remanded to Supreme Court for further proceedings on the felony complaint.

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.

Gonzalez, P.J., Saxe, McGuire, Manzanet-Daniels, RomÁn, JJ.

5765/06

The initial felony complaint charged defendant with grand larceny in the second degree. After it came to light that the total amount defendant embezzled from his employer exceeded $1 million, defendant agreed to waive prosecution by indictment and plead guilty to one count of grand larceny in the first degree. Defendant wrongly contends that the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint (see People v Pierce, 2010 N.Y. Slip Op. 01347). However, because the only offense contained in the superior court information was not an offense for which defendant was held for grand jury action, the SCI was jurisdictionally defective (see People v Zanghi, 79 NY2d 815 [1991]). Zanghi is indistinguishable from the present situation, and we have considered and rejected the People's arguments to the contrary. All concur except McGuire, J. who concurs in a separate memorandum as follows: McGUIRE, J. (concurring)

The record establishes, and defendant does not dispute, that after being aided by counsel at every step, from his arraignment to his guilty plea, he knowingly and intelligently waived his right to be prosecuted by indictment. The record also establishes, and defendant does not dispute, that he then knowingly and voluntarily both agreed to be prosecuted by a superior court information and pleaded guilty to the class B felony of first-degree grand larceny, for having stolen more than $1 million dollars. He freely admitted his guilt and agreed to the imposition of a state prison sentence. And a plea of guilty, of course, "generally marks the end of a criminal case, not a gateway to further litigation" (People v Hansen, 95 NY2d 227, 230 [2000]).

Nonetheless, defendant now argues, years later, when the People's ability to prosecute him for this serious felony may be compromised and even though he got exactly what he bargained for, that his conviction must be vacated. He makes no claim of innocence or that for some reason he did not know what he was doing. Rather, he relies on the purest of technicalities in arguing that he should not have been permitted to agree to be prosecuted by and plead guilty to a superior court information charging him with the precise crime he committed, first-degree grand larceny. More specifically, he maintains that under the second sentence of CPL 195.20, as construed by the Court of Appeals in People v Zanghi (79 NY2d 815 [1991]), the information was jurisdictionally defective.

We all agree that People v Zanghi requires us to reverse defendant's conviction. I write separately for two reasons. First, I think it appropriate to discuss defendant's argument that the information is defective under People v Zanghi because the only offense contained in the superior court information was greater than any charged in the felony complaint. The majority correctly rejects this argument, as it does not matter that the sole offense charged in the information is greater than any charged in the felony complaint; what matters is that the sole offense charged in the information is not charged in the felony complaint and is not a lesser included offense of any offense charged in the felony complaint. Indeed, after oral argument of this appeal, the Court of Appeals, rejected this very argument (People v Pierce, 2010 N.Y. Slip Op. 01347). Second, I respectfully submit that the Court of Appeals should reconsider its decision in People v Zanghi. The second sentence of CPL 195.20 does not require that it be construed to prohibit the parties under all circumstances from agreeing to a superior court information charging only a crime that is neither charged in the felony complaint nor a lesser included offense of such a crime. Construing the statute to contain that prohibition, moreover, serves no purpose as the prohibition neither protects a defendant from any evil nor vindicates any public policy consideration.

I.

On November 22, 2006, defendant executed in open court a written waiver of his constitutional right to be prosecuted by indictment and consented to be prosecuted instead by a superior court information charging him with first-degree grand larceny, which requires that the value of the property stolen exceed $1 million (Penal Law § 155.42). More than three months earlier, defendant had been arrested and charged in a felony complaint with second-degree grand larceny, which requires that the value of the property stolen exceed $50,000 (Penal Law § 155.40[1]), and second-degree criminal possession of a forged instrument (Penal Law 170.25). The felony complaint charged that defendant was the head of accounts payable at Nina Footwear and had stolen approximately $700,000 from the company by issuing forged checks to himself and a co-defendant. Notably, the felony complaint also alleged that defendant had admitted to the police that he had issued the checks in question and forged the signatures. Thereafter, as the minutes of the several proceedings in criminal court prior to November 22 establish, defense counsel and the prosecutor were negotiating a disposition.

At the outset of the proceedings on November 22, defense counsel made clear that defendant had not wanted and did not want to be indicted by a grand jury. The court noted that a superior court information had been prepared and that the People would proceed to a grand jury if a disposition was not reached. Defense counsel then stated, "We did not want to be indicted in ... this matter."

After the court stated that the felony complaint charged defendant with stealing hundreds of thousands of dollars from Nina Footwear, the prosecutor stated that "since the complaint was drafted, there has been a significant amount discovered on top of that. It is now over 1 million dollars." The court then outlined on the record the disposition to which the parties had agreed: defendant would plead guilty to a superior court information charging him with first-degree grand larceny in exchange for a prison sentence of 2 1/3 to 7 years, pay some $100,000 in restitution and consent to the entry of judgment against him in the full amount of the theft, about $1.5 million.

The considered, knowing and voluntary character of all that transpired thereafter is clear and not disputed. Following discussions between the court and counsel, defendant signed a waiver of indictment form. As required by CPL 195.20, the written waiver of indictment contained a statement by defendant that he was aware that he had the right under the New York State Constitution to be prosecuted by a grand jury indictment, was waiving that right and consenting to be prosecuted by a superior court information, and that the information would be charging the offense specified in the written waiver and have the same force and effect as an indictment filed by the grand jury. Also as required by CPL 195.20, the written waiver was signed by defendant in open court in the presence of his attorney, and the consent of the District Attorney was endorsed thereon.

In response to questions from the court, defendant said he understood both the waiver form and that there would not be an indictment, "consented to be prosecuted by a piece of paper called a superior court information," and wished to plead guilty to first-degree grand larceny, "the one and only count in the [s]uperior [c]court [i]nformation." Defendant then admitted that, over a two-year period from 2004 to 2006, he had stolen more than $1 million from Nina Footwear. He agreed both to the negotiated prison term of 2 1/3 to 7 years and to forfeiture of more than $100,000. In addition, he signed a confession of judgment for approximately $1.5 million. During the plea allocution, when the court asked whether any other promises had been made, defendant responded, "I just want it to be over with." He then confirmed that he both was pleading ...


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