| People v Ashe |
| 2010 NY Slip Op 04920 [74 AD3d 503] |
| June 10, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dwight Ashe, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered January26, 2007, convicting defendant, upon his plea of guilty, of grand larceny in the first degree, andsentencing him to a term of 2⅓ to 7 years, reversed, on the law, the plea vacated,the superior court information dismissed, and the matter remanded to Supreme Court for furtherproceedings on the felony complaint.
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 $1million, defendant agreed to waive prosecution by indictment and plead guilty to one count ofgrand larceny in the first degree. Defendant wrongly contends that the superior court informationwas jurisdictionally defective because it charged a crime of a higher degree than any of thecrimes charged in the felony complaint (see People v Pierce, 14 NY3d 564 [2010]).However, because the only offense contained in the superior court information was not anoffense for which defendant was held for grand jury action, the superior court information wasjurisdictionally defective (see People v Zanghi, 79 NY2d 815 [1991]). Zanghi isindistinguishable from the present situation, and we have considered and rejected the People'sarguments to the contrary. Concur—Gonzalez, P.J., Saxe, Manzanet-Daniels andRomÁn, JJ.
McGuire, J., concurs in a separate memorandum as follows: The record establishes, anddefendant does not dispute, that after being aided by counsel at every step, from his arraignmentto his guilty plea, he knowingly and intelligently waived his right to be prosecuted byindictment. The record also establishes, and defendant does not dispute, that he then knowinglyand voluntarily both agreed to be prosecuted by a superior court information and pleaded guiltyto the class B felony of first-degree grand larceny, for having stolen more than $1 milliondollars. He freely admitted his guilt and agreed to the imposition of a state prison sentence. Anda plea of guilty, of course, "generally marks the end of a criminal case, not a gateway to furtherlitigation" (People v Hansen, 95 NY2d 227, 230 [2000]).[*2]
Nonetheless, defendant now argues, years later, when thePeople's ability to prosecute him for this serious felony may be compromised and even though hegot exactly what he bargained for, that his conviction must be vacated. He makes no claim ofinnocence or that for some reason he did not know what he was doing. Rather, he relies on thepurest of technicalities in arguing that he should not have been permitted to agree to beprosecuted by and plead guilty to a superior court information charging him with the precisecrime he committed, first-degree grand larceny. More specifically, he maintains that under thesecond sentence of CPL 195.20, as construed by the Court of Appeals in People vZanghi (79 NY2d 815 [1991]), the information was jurisdictionally defective.
We all agree that People v Zanghi requires us to reverse defendant's conviction. Iwrite separately for two reasons. First, I think it appropriate to discuss defendant's argument thatthe information is defective under People v Zanghi because the only offense contained inthe superior court information was greater than any charged in the felony complaint. Themajority correctly rejects this argument, as it does not matter that the sole offense charged in theinformation is greater than any charged in the felony complaint; what matters is that the soleoffense charged in the information is not charged in the felony complaint and is not a lesserincluded offense of any offense charged in the felony complaint. Indeed, after oral argument ofthis appeal, the Court of Appeals, rejected this very argument (People v Pierce, 14 NY3d564 [2010]). Second, I respectfully submit that the Court of Appeals should reconsider itsdecision in People v Zanghi. The second sentence of CPL 195.20 does not require that itbe construed to prohibit the parties under all circumstances from agreeing to a superior courtinformation charging only a crime that is neither charged in the felony complaint nor a lesserincluded 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 vindicatesany public policy consideration.
On November 22, 2006, defendant executed in open court a written waiver of hisconstitutional right to be prosecuted by indictment and consented to be prosecuted instead by asuperior court information charging him with first-degree grand larceny, which requires that thevalue of the property stolen exceed $1 million (Penal Law § 155.42). More than threemonths earlier, defendant had been arrested and charged in a felony complaint withsecond-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 ofaccounts payable at Nina Footwear and had stolen approximately $700,000 from the company byissuing forged checks to himself and a codefendant. Notably, the felony complaint also allegedthat defendant had admitted to the police that he had issued the checks in question and forged thesignatures. Thereafter, as the minutes of the several proceedings in criminal court prior toNovember 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 defendanthad not wanted and did not want to be indicted by a grand jury. The court noted that a superiorcourt information had been prepared and that the People would proceed to a grand jury if adisposition 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[*3]of thousands of dollars from Nina Footwear, the prosecutorstated that "since the complaint was drafted, there has been a significant amount discovered ontop of that. It is now over 1 million dollars." The court then outlined on the record the dispositionto which the parties had agreed: defendant would plead guilty to a superior court informationcharging him with first-degree grand larceny in exchange for a prison sentence of2⅓ to 7 years, pay some $100,000 in restitution and consent to the entry ofjudgment 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 andnot disputed. Following discussions between the court and counsel, defendant signed a waiver ofindictment form. As required by CPL 195.20, the written waiver of indictment contained astatement by defendant that he was aware that he had the right under the New York StateConstitution to be prosecuted by a grand jury indictment, was waiving that right and consentingto be prosecuted by a superior court information, and that the information would be charging theoffense specified in the written waiver and have the same force and effect as an indictment filedby the grand jury. Also as required by CPL 195.20, the written waiver was signed by defendantin open court in the presence of his attorney, and the consent of the District Attorney wasendorsed thereon.
In response to questions from the court, defendant said he understood both the waiver formand that there would not be an indictment, "consented to be prosecuted by a piece of paper calleda superior court information," and wished to plead guilty to first-degree grand larceny, "the oneand only count in the [s]uperior [c]ourt [i]nformation." Defendant then admitted that, over atwo-year period from 2004 to 2006, he had stolen more than $1 million from Nina Footwear. Heagreed both to the negotiated prison term of 2⅓ to 7 years and to forfeiture ofmore than $100,000. In addition, he signed a confession of judgment for approximately $1.5million. During the plea allocution, when the court asked whether any other promises had beenmade, defendant responded, "I just want it to be over with." He then confirmed that he both waspleading guilty voluntarily and in fact was guilty. At sentencing, on January 26, 2007, the courtnoted that defendant had pleaded guilty under a superior court information and that "[e]verythingwas agreed to ahead of time."
As defendant tacitly concedes, his waiver of the right to indictment does not violate anythingin article I, § 6 of the New York State Constitution. In relevant part, that provisionexpressly states that "a person held for the action of a grand jury" upon a charge of a felonyoffense, "other than one punishable by death or life imprisonment, with the consent of the districtattorney, may waive indictment by a grand jury and consent to be prosecuted on an informationfiled by the district attorney; such waiver shall be evidenced by written instrument signed by thedefendant in open court in the presence of his or her counsel." Each of these constitutionalconditions was satisfied here and defendant makes no claim to the contrary.
With respect to the nonconstitutional claims defendant does make, he misreads CPL 195.20and contends that the superior court information was jurisdictionally defective "because itcharged a higher level of offense than any charged in the felony complaint." As noted above,after oral argument of this appeal, the Court of Appeals rejected this contention (People vPierce, 14 NY3d at 572 [inclusion in superior court information of offense of higher gradethan any charged in felony complaint does not, "standing alone, . . . establish theinvalidity of the [information] under [*4]Zanghi"]). Theopinion in Pierce, however, principally focuses on another issue and the Court did notdiscuss at any length why it rejected the claim that a superior court information may not charge ahigher level of offense than any charged in the felony complaint. Explaining why the claim ismeritless helps explain why I believe the Court should reconsider People v Zanghi.
First of all, CPL 195.20 contains no prohibition on the inclusion in a superior courtinformation of a count alleging a higher level offense than that or those charged in a felonycomplaint (or for which the defendant was held for the action of a grand jury). In relevant part,the statute reads as follows: "The offenses named [in a superior court information] may includeany offense for which the defendant was held for action of a grand jury and any offenseor offenses properly joinable therewith pursuant to sections 200.20 and 200.40" (CPL 195.20[emphasis added]).[FN1]Under CPL 200.20, the section applicable here, the level of an offense is irrelevant to thequestion of whether it is properly joinable with another offense.
Accordingly, the prohibition defendant finds in the second clause of this sentence isprecluded by the plain language of the statute. As in People v Menchetti (76 NY2d 473[1990]), the word "any" should be given its plain meaning. There, the Court of Appealsemphasized the same word in the first clause of this sentence in concluding that a superior courtinformation could charge a lesser included offense of an offense for which a defendant was heldfor the action of a grand jury (id. at 477).[FN2]Defendant reads CPL 195.20 as if it stated that the offenses named in a superior courtinformation "may include any offense for which the defendant was held for action of a grandjury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and200.40[, except that no such joinable offense may be a higher level of offense than the offense oroffenses for which the defendant was held for action of a grand jury]." That reading of thestatute, however, is impermissible (see Matter of Chemical Specialties Mfrs. Assn. vJorling, 85 NY2d 382, 394 [1995]).[*5]
By contrast, another provision of the Criminal ProcedureLaw does expressly qualify the broad sweep of the authority conferred by CPL 195.20 to allegein a superior court information "any offense properly joinable" (emphasis added) with anoffense for which the defendant was held for action of a grand jury. CPL 200.15, after employingthe same language as CPL 195.20 to define the offenses that may be included in a superior courtinformation, goes on to prohibit the inclusion of "an offense not named in the written waiver ofindictment executed pursuant to section 195.20." The existence of this express prohibition isanother reason to reject the unstated prohibition defendant discovers in CPL 195.20 (Moralesv County of Nassau, 94 NY2d 218, 224 [1999]).
Giving the second sentence of CPL 195.20 its natural meaning accords with common sense.The usefulness and practicality of the flexibility it affords to both the prosecution and thedefense is apparent. Suppose, for example, that after a defendant is held for the action of a grandjury on a felony complaint charging the class D felony of second-degree assault (Penal Law§ 120.05), the victim dies from her injuries. Because the class B felony of first-degreemanslaughter (Penal Law § 125.20) is properly joinable with the second-degree assaultcharge (CPL 200.20 [2] [b]), the defendant could waive his right to indictment pursuant to anagreement to be prosecuted by a superior court information for the homicide offense. Anotherexample would be a case in which the defendant was charged in a felony complaint with theclass E felony of third-degree rape for engaging in sexual intercourse with another person lessthan 17 years old (Penal Law § 130.25 [2]). If further investigation after the filing of thefelony complaint revealed that the defendant was guilty of first-degree rape (Penal Law §130.35 [1]) for having committed the rape (or another rape of the victim during a differentcriminal transaction) by means of forcible compulsion, CPL 195.20 would permit the defendantto waive indictment and agree to be prosecuted by a superior court information for the class Bfelony of first-degree rape (CPL 200.20 [2] [a], [b]).
This case also illustrates the good sense of CPL 195.20. When defendant was arrested andarraigned on the felony complaint, the full extent of his theft was unknown. Unquestionably, anddefendant does not dispute, the first-degree grand larceny offense is properly joinable with bothof the crimes alleged in the felony complaint, second-degree grand larceny and second-degreecriminal possession of a forged instrument, regardless of whether the first-degree grand larcenycharge is based on the same criminal transaction as those lesser offenses (CPL 200.20 [2] [a],[b], [c]). Of course, and as is discussed below, a defendant can secure significant benefits bywaiving indictment.
Defendant is correct, however, that People v Zanghi requires reversal of hisconviction. Zanghi was held for the action of a grand jury following his arraignment on a felonycomplaint charging criminal possession of stolen property in the fourth degree and themisdemeanor of unauthorized use of a motor vehicle in the third degree. He thereafter executed awritten waiver of his right to indictment, consented to be prosecuted by a superior courtinformation charging him solely with criminal possession of stolen property in the thirddegree and pleaded guilty to that crime. The Court of Appeals agreed with Zanghi's claim thatthe superior court information was jurisdictionally defective.
The Court explained its holding as follows: "The language of CPL 195.20 makes clear thatwhere 'joinable' offenses are included, the information must, at a minimum, also [*6]include at least one offense that was contained in the felonycomplaint ('offenses named [in the information] may include any offense for which the defendantwas held . . . and any offense or offenses properly joinabletherewith' [emphasis supplied]). Since the information here did not meet that criterion, itis unnecessary for us to decide in this case whether CPL 195.20's provision for includingjoinable offenses along with the offense for which the defendant was held is consistent with theconstitutional provisions for waiver of indictment" (People v Zanghi, 79 NY2d at 818).
As is evident, the Court held that the information was jurisdictionally defective because itdid not meet what the Court believed to be a requirement of the statute, the requirement that it,"at a minimum, also include at least one offense that was contained in the felonycomplaint."[FN3]The Court expressly predicated its holding on the failure of the information to "meet thatcriterion" (id.), not on the ground that it charged an offense higher than any for whichZanghi was held for the action of a grand jury.
As also is evident, this case is indistinguishable from People v Zanghi. Because thesuperior court information charged only first-degree grand larceny, and that offense is not onefor which defendant was held for the action of the grand jury, under People v Zanghi it isof no moment that first-degree grand larceny is properly joinable with both crimes charged in thefelony complaint. The information is jurisdictionally defective nonetheless.
I respectfully submit that CPL 195.20 does not require a superior court information to chargeat least one of the offenses charged in the felony complaint. In the first place, the sentence statesthat "[t]he offenses named may include any offense for which the defendant washeld for action of a grand jury and any offense or offenses properly joinable therewith"(emphasis added). Giving the words "may" and "any" their ordinary meaning, the statuteauthorizes the information to include any of two categories of offenses—those for whichthe defendant was held for action of the grand jury and those properly joinable with the formercategory—without requiring the inclusion of an offense from both categories or only theformer category. A lease might permit tenants of an apartment building "to have any dog lessthan 30 lbs and any other domesticated animal that weighs less," but nobody would think that atenant who has a cat also must have a dog. People v Zanghi, however, reads the sentenceas if it stated that "[t]he offenses named [must] include [an] offense for which thedefendant was held for action of a grand jury and [may include] any offense or offensesproperly joinable therewith." The Legislature, of course, easily could have so stated if it intendedthat meaning (Matter of Theroux vReilly, 1 NY3d 232, 240 [2003] ["If the Legislature had intended (a restriction), iteasily could have and surely would have written the statute to say so. We may not create alimitation that the Legislature did not enact"]).[*7]
To be sure, as one court emphasized in construing theword "may" in this same sentence, there is authority that permits the word to be construed tomean "must" when "required by the context of the statute, by the facts surrounding the statute'senactment, or to effectuate the legislative intent" (People v Herne, 110 Misc 2d 152, 158[Franklin County Ct 1981]). There is no good reason, however, to give an unnatural reading tothe word "may" in the present context. The two words in the sentence emphasized by the Courtin People v Zanghi, "and" and "therewith," do not provide such a reason. As noted,particularly given that the opening clause states that the information "may" include any offensefor which the defendant was held for the grand jury, it is not at all unreasonable to construe theclause that follows the word "and" to state a separate category of offenses that the informationalso may include.[FN4]
The Court did not explain in People v Zanghi why it believed the word "therewith"supported its holding that an offense joinable with an offense for which the defendant was heldfor action of a grand jury may be charged in a superior court information only if the latteroffense also is charged. If the Court believed, however, that the word refers back to the superiorcourt information, suffice it to say that another reading of the sentence is reasonable. After all,the nearest antecedent to the word "therewith" (see generally Matter of People v Applied Card Sys., Inc., 11 NY3d105, 127 [2008, Read, J., dissenting] [discussing grammatical rule of the last antecedent],cert denied sub nom. Cross Country Bank, Inc. v New York, 555 US —, 129 S Ct999 [2009]), is not an accusatory instrument but the phrase "any offense for which the defendantwas held for action of a grand jury." In any event, the sentence does not unambiguously requirethat when a joinable offense is charged in a superior court information, the information also mustcharge the offense charged in the felony complaint with which the former offense is joinable.
In People v Herne, the court believed that its interpretation of the second sentence ofCPL 195.20, the same one later adopted by the Court of Appeals in People v Zanghi, wassupported by the principle that "a statute should be construed so as to avoid doubts concerningits constitutionality" (110 Misc 2d at 158 [internal quotation marks omitted]). But construing thesentence to mandate that the information always include an offense for which the defendant washeld for action of a grand jury raises, rather than avoids, a constitutional question, i.e., whetherthe statute impermissibly limits the right to waive indictment conferred by New YorkConstitution, article I, § 6.[FN5]The constitutional text contains no language suggesting that the right to waive [*8]indictment is contingent on the inclusion in the information of atleast one of the offenses for which a defendant was held for the action of a grand jury. Rather,apart from prohibiting a waiver when a person is held for the action of a grand jury for anoffense punishable by death or life imprisonment, the text requires only that the person havebeen "held for the action of a grand jury upon a charge for [an infamous crime]" (NY Const, artI, § 6). The absence of any such textual support for requiring an information to include atleast one of the offenses for which the defendant was held for the action of a grand jury isimportant, albeit not necessarily decisive (cf. People v Page, 88 NY2d 1, 9 [1996][construing constitutional provision and observing that "(t)he most compelling criterion in theinterpretation of an instrument is, of course, the language itself" (internal quotation marksomitted)]).
Notably, when a person who has been held for the action of a grand jury is indicted, nothingin the Criminal Procedure Law requires that the indictment allege at least one of the offenses forwhich he or she was held for the grand jury's action. To the contrary, the relevant statute requiresonly that the indictment "must charge at least one crime" (CPL 200.20 [1]). Again, nothing in theconstitutional text suggests that a defendant who waives indictment, but not a defendant who isindicted after being charged in a felony complaint, must be charged with at least one of theoffenses for which he or she was held for the action of a grand jury.
A constitutional provision, moreover, "is to be construed . . . to give itsprovisions practical effect, so that it receives a fair and liberal construction, not only according toits letter, but also according to its spirit and the general purposes of its enactment" (Ginsbergv Purcell, 51 NY2d 272, 276 [1980] [internal quotation marks omitted]). As GovernorRockefeller stated in proposing the amendment to article I, § 6, "[t]his procedural advance. . . would undoubtedly speed disposition of serious cases and help to clear courtcalendars, without infringing upon a defendant's basic rights or the right of society to adequateprotection" (1971 Public Papers of Nelson A. Rockefeller, at 1152 [internal quotation marksomitted]). In addition, Governor Rockefeller stated that a "substantial portion" of defendantswho eventually plead guilty, "desiring to [expedite] the disposition of the charges against them,would favor waiving the requirement of a grand jury indictment" (id.). In light of thesestatements of the amendment's purposes, stingy construction of it would be needed to invalidatea statute permitting a superior court information to allege only an offense joinable with one forwhich the defendant was held for action of a grand jury.
Other substantive considerations support my reading of CPL 195.20. The clear import ofZanghi, as well as the plain language of CPL 195.20 (and CPL 200.15), is that theinformation would be impeccable rather than jurisdictionally defective if it also alleged either ofthe offenses charged in the felony complaint (second-degree grand larceny or second-degreecriminal possession of a forged instrument). The additional and crucial point is that theLegislature could not have had any reason to differentiate between the information to whichdefendant and the People agreed, charging only first-degree grand larceny, and the informationto which they could have agreed, charging that offense and an offense, second-degree grandlarceny, they evidently regarded as irrelevant to the prosecution and disposition of the case.Nothing, no substantive right of the defendant or any public policy objective, would be served byinsisting that the [*9]information also charge an offense that theparties regarded as irrelevant.[FN6]
Construing CPL 195.20 to require a superior court information to charge at least one offensefor which the defendant was held for action of a grand jury entails a particularly odd if notquixotic consequence. If, as is clear, the information would have been valid had it also chargedeither of the offenses charged in the felony complaint, it follows that the information would bevalid if that additional charge was second-degree grand larceny. (There is no textual support inCPL 195.20 for differentiating between the offenses for which the defendant was held for actionof a grand jury). But that means the information is jurisdictionally defective because it failed toallege a legally irrelevant offense. After all, the second-degree offense is a lesser includedoffense of the first-degree offense (CPL 1.20 [37]), and the Criminal Procedure Law expresslypermits a defendant to plead guilty to a lesser included offense. Thus, including a charge ofsecond-degree grand larceny would add nothing, or at least nothing of substance, to theinformation.
In another case, moreover, the parties might agree after arraignment in local criminal courtthat although there is sufficient evidence to establish the defendant's guilt of an offense joinablewith an offense charged in the felony complaint, the evidence is insufficient to support thecharge or charges in the felony complaint. For example, if a felony complaint charged the classB felony of first-degree robbery (Penal Law § 160.15) and the prosecution laterdetermined that it could prove only the class E felony of fourth-degree criminal possession ofstolen property (Penal Law § 165.45), the defendant might be able to obtain a benefit bycommunicating to the prosecutor his willingness to waive indictment and plead guilty to thepossession charge. It makes no sense to think the Legislature intended to preclude a defendant inthose circumstances from waiving his or her right to indictment and agreeing to be prosecuted bya superior court information unless he or she also were willing to be accused of a baseless chargein the information. A defendant's right under the New York Constitution to waive his or her rightto indictment is just that, a constitutional right (NY Const, art I, § 6). And it is not obvioushow the exercise of that right lawfully could be conditioned on the defendant's willingness tohave the information include a baseless or irrelevant charge (cf. Kusper v Pontikes, 414US 51, 58-59 [1973] ["For even when pursuing a legitimate interest, a State may not choosemeans that unnecessarily [*10]restrict constitutionally protectedliberty"]).
Moreover, a rule prohibiting waiver of the right to indictment unless the superior courtinformation alleges at least one offense charged in the felony complaint can be circumvented bythe parties. After all, if the parties agreed to a superior court information charging only anoffense joinable with an offense charged in the felony complaint, they could agree to have thedefendant rearrested and charged with that offense in a new felony complaint (cf. People vD'Amico, 76 NY2d 877 [1990], supra). Presumably, another alternative would be forthe parties to agree to amend the felony complaint, with any supporting depositions that might benecessary, pursuant to CPL 100.45. But requiring that the defendant be arrested anew or that newproceedings be commenced in criminal court on new or amended felony complaints is pointless.A procedural rule devoid of substance invites evasions that underscore itsinsubstantiality.[FN7]
In sum, the text of CPL 195.20 does not compel the construction adopted in People vZanghi and unreasonable consequences follow from that construction. Accordingly, thestatute should be construed to permit the information to charge an offense joinable with anoffense for which the defendant was held for action of a grand jury, regardless of whether thelatter offense also is charged (see e.g. Matter of Rouss, 221 NY 81, 91 [1917, Cardozo,J.] ["Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be soconstrued, if possible, that absurdity and mischief may be avoided"]; People v Santi, 3 NY3d 234, 242[2004] ["courts normally accord statutes their plain meaning, but will not blindly apply thewords of a statute to arrive at an unreasonable or absurd result" (internal quotation marksomitted)]; see also Matisoff v Dobi, 90 NY2d 127, 133 [1997] ["where a statute'slanguage is capable of various constructions, the 'obvious spirit and intent' of a statutenecessarily informs the meaning and import to be accorded that language"]).
Finally, the mandate of CPL 470.05 (1) is relevant here. The Legislature's command is that"[a]n appellate court must determine an appeal without regard to technical errors or defectswhich do not affect the substantial rights of the parties." Although this statute does not expresslydirect courts how to construe provisions of the Criminal Procedure Law, its directive should beconsidered when a court is attempting to resolve an ambiguity in one of those provisions. As[*11]between two possible readings of a provision of theCriminal Procedure Law, surely an appellate court should not adopt the one turning ontechnicalities that do not affect the substantial rights of the parties. This case presents a conflictbetween two obligations of intermediate appellate courts, the duty to abide the decisions of theCourt of Appeals and the duty to abide the mandates of the Legislature. While I think we shouldresolve the conflict by abiding the former obligation, I also think the mandate of CPL 470.05 (1)is sufficient to justify my invitation to the Court of Appeals, however presumptuous theinvitation may be, to reconsider People v Zanghi.[FN8]But if I am wrong—if, that is, the Legislature reasonably might have intended to bar theparties from agreeing to a superior court information charging only an offense joinable with onefor which the defendant was held for action of a grand jury and such a bar is consistent with theconstitutional right to waive indictment—the Court's disagreement with my positionshould be adequate recompense for the presumption.
Footnote 1: The phrase "held for action of agrand jury" is not defined in a formal sense in the Criminal Procedure Law. An order of a localcriminal court holding a defendant for grand jury action, however, "presupposes that a felonycomplaint has been filed, [the] defendant has been arraigned on the complaint and, following apreliminary hearing (unless waived by [the] defendant), the local criminal court has foundreasonable cause to believe [the] defendant committed a felony (see, CPL 180.10,180.30, 180.70)" (People v D'Amico, 76 NY2d 877, 879 [1990]). I agree with themajority's implicit determination to reject the People's argument that first-degree grand larcenywas one of the offenses for which defendant was held for action of the grand jury; whether alocal criminal court could hold a defendant for action of a grand jury for an offense not chargedin the felony complaint is an issue we need not address.
Footnote 2: The Court also observed inPeople v Menchetti that "[t]he plain language of [article I, § 6] does not requirethat the information contain the precise charge for which the defendant was held even though thewaiver of indictment is necessarily a waiver of indictment on that charge" (76 NY2d at 477[internal quotation marks omitted]).
Footnote 3: The Court's discussion ofPeople v Menchetti (76 NY2d 473 [1990], supra) makes plain that thisrequirement is satisfied if the information charges only a lesser included offense of an offensecharged in the felony complaint (see People v Zanghi, 79 NY2d at 817).
Footnote 4: Moreover, a principle ofstatutory construction permits the word "and" to be construed as "or," and vice versa, whendoing so better effectuates legislative intent (see People ex rel. Municipal Gas Co. of City ofAlbany v Rice, 138 NY 151, 156 [1893] ["The words 'and' and 'or,' when used in a statute,are convertible as the sense may require. The substitution of the one for the other is frequentlyresorted to in the interpretation of statutes when the evident intention of the lawmakers requiresit"]; see also Matter of Long v Jerzewski, 235 App Div 441, 442 [4th Dept 1932]).
Footnote 5: The court in People v Hernealso believed its reading of the second sentence of CPL 195.20 to be supported by theprinciple that a "statute must not be given a construction which would make it an absurdity" (110Misc 2d at 158). As is also discussed below, however, the construction adopted in People vHerne and People v Zanghi is the one that produces untenable consequences.
Footnote 6: To the contrary, to the extent itresults in fewer waivers, precluding a waiver of the right to indictment unless the superior courtinformation alleges an offense for which the defendant was held for action of a grand jury iscounter to public policy. The legislation implementing the constitutional right to waiveindictment (L 1974, ch 467) was a Governor's program bill and, as Governor Wilson explainedin the memorandum accompanying the bill, the "waiver of indictment procedure will permit. . . a defendant to obtain a speedier trial and will save time and expense expendedin unnecessary grand jury proceedings. The waiver [procedure] should also reduce the backlogof cases . . . awaiting grand jury action" (Governor's Program Bill Mem at 3, BillJacket, L 1974, ch 467, at 12, 1974 NY Legis Ann, at 10; see also Governor's ApprovalMem, Bill Jacket, L 1974, ch 467, at 13, 1974 McKinney's Session Laws of NY, at 2095). Ofcourse, moreover, these statements of the purposes of the legislation are in accordance withGovernor Rockefeller's statements about the purposes of the constitutional amendment.
Footnote 7: Because no substantive reasonis apparent for construing CPL 195.20 to embrace this rule, it can act as a trap for the unwary.Prosecutors and defense attorneys who are unaware of the rule are less likely to discover itthrough research. Perhaps for that reason, this case is not an isolated phenomenon. In at leasteight cases, the Appellate Division has reversed convictions under People v Zanghi (People v Morson, 67 AD3d 1026[2d Dept 2009]; People v Colon, 39AD3d 661 [2d Dept 2007]; Peoplev Edwards, 39 AD3d 875 [2d Dept 2007]; People v Goforth, 36 AD3d 1202 [4th Dept 2007], lvdenied 8 NY3d 946 [2007]; Peoplev Kohl, 19 AD3d 1155 [4th Dept 2005]; People v Colon, 16 AD3d 433 [2005], supra; People v Quarcini, 4 AD3d 864[4th Dept 2004]; People v Lucas, 200 AD2d 414 [1st Dept 1994]; see also People vJohnson, 187 AD2d 990 [4th Dept 1992] [defendant improperly sentenced as second violentfelony offender because predicate conviction for second-degree robbery should have beenvacated under People v Zanghi]).
Footnote 8: I recognize, of course, that theCourt could conclude that adhering to People v Zanghi is appropriate on the basis ofprinciples of stare decisis (see e.g.People v Taylor, 9 NY3d 129, 148-149 [2007]; People v Bing, 76 NY2d 331,337-338 [1990]).