| People v Frasier |
| 2013 NY Slip Op 02289 [105 AD3d 1079] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRonald Frasier, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered September 8, 2010, convicting defendant upon his plea of guilty ofthe crime of murder in the second degree.
During an altercation at a night club, defendant and his codefendant brother allegedlyshot two victims, killing one and injuring the other. In connection with this incident,defendant was charged by indictment with murder in the second degree, assault in thefirst degree (three counts), attempted murder in the second degree, criminal possession ofa weapon in the second degree (two counts) and criminal possession of a weapon in thethird degree. The indictment additionally charged him with criminal possession of aweapon in the second degree (three counts) and criminal possession of a weapon in thethird degree (four counts) in connection with several other incidents. After a week oftrial, defendant pleaded guilty to murder in the second degree in satisfaction of all of thecharges.[FN*]County Court imposed the agreed-upon prison sentence of 18 years to life. Defendantappeals.[*2]
Once the indictment was returned, defendant'shabeas corpus petition, seeking his release pursuant to CPL 190.80, was rendered mootand the exception to the mootness doctrine does not apply (see People v Bellamy, 85AD3d 1395, 1396 [2011]; People v Phillips, 277 AD2d 816, 819 [2000],lv denied 96 NY2d 804 [2001]). Thus, we will not address County Court'shandling of that petition.
After reviewing County Court's oral discussion of defendant's waiver of the right toappeal and the executed written waiver, we conclude that defendant validly waived hisright to appeal (see People vWhite, 96 AD3d 1299, 1299-1300 [2012], lv denied 19 NY3d 1029[2012]; People v Clemons,96 AD3d 1086, 1087 [2012], lv denied 19 NY3d 1101 [2012]). A validwaiver precludes arguments concerning rulings on technical or evidentiary matters, butclaims survive the waiver if the alleged defects are jurisdictional or of a constitutionalnature that go to the heart of the process (see People v Maye, 69 AD3d 1115, 1116 [2010], lvdenied 15 NY3d 807 [2010]). Among the arguments foreclosed by defendant'swaiver are his assertions that County Court erred in its decision following theWade hearing and in precluding his alibi defense (see People v Lewis, 95 AD3d1442, 1443 [2012], lv denied 19 NY3d 998 [2012]; People v Moreno, 86 AD3d863, 864 [2011], lv denied 17 NY3d 954 [2011]).
Assuming, without deciding the question, that part of defendant's argumentconcerning the presentment to the grand jury raises an issue of a jurisdictional orconstitutional nature, the argument is unavailing on the merits. Defendant asserts that thePeople improperly represented charges to a grand jury without court permission. If agrand jury votes to dismiss a proposed charge, the court may allow the People toresubmit the charges to the same or another grand jury (see CPL 190.75 [1], [3]).If the grand jury initially votes favorably on a charge, however, the statute does notimpose the same limits on the People. In that situation, the People may, without courtapproval, resubmit the charge to the same grand jury with additional evidence on thatcharge or with additional proposed charges, or resubmit it to another grand jury and seekto obtain a superceding indictment (see People v Cade, 74 NY2d 410, 414-415[1989]). The grand jury minutes here reveal that the grand jury voted a true bill on themurder count but, before the indictment was filed with the court, the People presentedadditional evidence and numerous other proposed charges to the same grand jury, whichthen voted favorably on multiple charges as reflected in the indictment at issue. As therewas no dismissal or withdrawal of charges, there was no second presentment of chargesand the People were not required to obtain court permission to present additionalevidence and proposed charges (see id.). Thus, County Court correctly denied theportion of defendant's motion seeking dismissal of the indictment on that basis.
Defendant's remaining contentions, to the extent that they are not precluded by hisguilty plea or valid waiver of appeal, are without merit.
Mercure, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant's brotherpleaded guilty to murder in the second degree and assault in the first degree (People v Fraiser, 90 AD3d1082 [2011], lv denied 19 NY3d 996 [2012]).