| People v Casey |
| 2009 NY Slip Op 07524 [66 AD3d 1128] |
| October 22, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gina M.Casey, Appellant. |
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Kavanagh, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered January 14, 2008, convicting defendant upon her plea of guilty of thecrime of assault in the third degree.
On July 29, 2006, the victim was seriously injured as a result of being attacked by numerousindividuals while outside a bar located in the City of Ogdensburg, St. LawrenceCounty.[FN1] Defendant denied any involvement in this attack, but admitted to punching the victim [*2]in the nose with her fist earlier that evening while they were insidethe bar.[FN2]After being charged by indictment with assault in the second degree, defendant moved to dismissthe indictment on the ground that the evidence before the grand jury was legally insufficient toestablish that the victim had sustained a serious injury as the result of the assault. Upon review ofthe grand jury minutes, County Court agreed and reduced the charge contained in the indictmentto assault in the third degree. Subsequently, defendant pleaded guilty to the reduced charge,waived her right to appeal and was ultimately sentenced to 365 days in jail. Defendant nowappeals.
Defendant initially claims that the procedure employed by County Court to reduce thecharge contained in the indictment did not comply with relevant statutory procedures and servedto create a jurisdictional defect that deprived it of jurisdiction to take her guilty plea. Given thatdefendant's claim is jurisdictional in nature, it is not precluded by the waiver of her right toappeal or her guilty plea (see People vBethea, 61 AD3d 1016, 1017 [2009]; People v Antoniou, 59 AD3d 805, 806 [2009]; see also People v Cullen, 62 AD3d1155, 1157 [2009]; People vBurdo, 1 AD3d 793, 794 [2003], lv denied 2 NY3d 761 [2004]; comparePeople v Trank, 58 AD3d 1076, 1077 [2009], lv denied 12 NY3d 860 [2009]).
As relevant herein, CPL 210.20 (6) provides that when a court decides to reduce a countcontained in an indictment on the ground that it is not supported by legally sufficient evidence,the People do one of the following: (1) accept the court's order and file a prosecutor'sinformation containing the reduced charge; (2) re-present the matter to a grand jury; or (3)appeal the court's order. County Court, when it decided that the evidence presented to the grandjury was legally insufficient to sustain a charge of assault in the second degree, by its own hand,changed the wording of the indictment so that it charged defendant with assault in the thirddegree. The People did not take any action in response to the court's decision and chose toproceed on the indictment as amended by the court. The issue raised by this appeal is whetherthe decision by the People to proceed on the indictment as amended by the court satisfied theirobligation under CPL 210.20 (6). We find that it did not.
Where a court acts to reduce a charge contained in an indictment and the People fail within30 days to take any action in response to this decision, the order directing the reduction shalltake effect and the People are obligated, if they intend to pursue a prosecution, to either file aninstrument containing the reduced charge or obtain permission to re-present the matter to a grandjury (see CPL 210.20 [6] [b]). There is no statutory authority for the court to amend thatindictment and, in its own words, draft an accusatory instrument charging defendant with areduced crime. Its authority in this circumstance is strictly defined by statute and is limited to adetermination as to whether the charges contained in the indictment are supported by legallysufficient evidence. The drafting of an accusatory instrument that reflects the court's finding andcharges a defendant with a crime that is supported by legally sufficient evidence is a statutoryobligation that must be fulfilled by the People. As such, we find that the indictment as amendedby County Court was jurisdictionally defective and defendant's conviction must be reversed.
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the judgment is reversed,on the law, and indictment dismissed.
Footnote 1: Defendant, as well as herbrother, Jared Casey, and cousin, Jacob Brabant, was arrested and originally charged with gangassault in connection with this incident. However, defendant, when indicted, was charged withindividually assaulting the victim and not with acting in concert with any other individualsduring the attack. Both Brabant and Casey were found guilty after trial of assault in the seconddegree and both judgments of conviction were subsequently affirmed (People v Brabant, 61 AD3d 1014[2009], lv denied 12 NY3d 851 [2009]; People v Casey, 61 AD3d 1011 [2009], lv denied 12 NY3d913 [2009]).
Footnote 2: According to the victim, hisnose was fractured as a result of being struck by defendant.