Appeal from an order of the Monroe County Court (Alex R. Renzi, J.), entered December 24, 2009.
The opinion of the court was delivered by: Lindley, J.
Appellate Division, Fourth Department
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.
Decided on October 7, 2011
PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, AND GORSKI, JJ.
The order dismissed the indictment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Opinion by Lindley, J.: The People appeal from an order granting that part of defendant's omnibus motion seeking to dismiss the indictment on double jeopardy grounds. For the reasons that follow, we conclude that County Court properly determined that prosecution of the indictment is barred by the Double Jeopardy Clauses of the federal and state constitutions.
By way of background, in August 2002 defendant was charged by felony complaint with assault in the second degree (Penal Law § 120.05 ) in connection with an incident in which he struck a man multiple times with a golf club. Defendant thereafter waived indictment and pleaded guilty in County Court (Marks, J.) to a superior court information (SCI) charging him with assault in the second degree pursuant to section 120.05 (2), a different subdivision of the statute than was charged in the felony complaint. The case had not been presented to the grand jury. Pursuant to the plea agreement, defendant was sentenced in February 2003 to a determinate term of imprisonment of five years and to five years of postrelease supervision (PRS). He was released from prison in March 2007 and commenced his period of PRS.
On June 29, 2008, while still subject to PRS, defendant killed a man by punching him in the back of the head during a fight at a softball game. Charged with assault in the third degree and criminally negligent homicide, defendant was convicted of both charges following a non-jury trial in County Court (Connell, J.). The People sought persistent felony offender status for defendant based on the 2003 assault conviction and a 1998 burglary conviction. Defendant opposed persistent felony offender status on grounds that his 2003 guilty plea was to a charge not contained in the felony complaint and not a lesser included offense, and that his right to be indicted by a grand jury had thus been violated (see NY Const, art I, § 6; CPL 195.10  [a]; see generally People v Johnson, 187 AD2d 990). The court agreed with defendant, finding "that the defendant's conviction . . . in 2003 was jurisdictionally defective and a nullity and ...