| People v Gryner |
| 2014 NY Slip Op 02631 [116 AD3d 1247] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJordan Gryner, Appellant. |
—[*1] Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Columbia County (Nichols,J.), rendered May 22, 2012, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree (five counts).
In September 2011, defendant was charged by indictment with five counts ofburglary in the second degree in connection with his arrest for entering and taking moneyfrom the victim's home on multiple occasions. He thereafter moved to disqualify theColumbia County District Attorney's office based upon a perceived conflict of interest.County Court denied that motion and defendant subsequently pleaded guilty to theindictment and was sentenced to concurrent four year prison terms, to be followed byfive years of postrelease supervision, and was required to pay restitution. Defendantappeals, and we affirm.
We reject defendant's argument that County Court erred by denying his motion todisqualify the District Attorney's office. To the extent that he seeks dismissal of theindictment on this ground,[FN1] his argument relates to "the kind of nonjurisdictional defect which defendant [*2]must be held to have waived by [a] guilty plea" (Peoplev Allen, 236 AD2d 653, 654 [1997] [internal quotation marks and citation omitted]).In any event, we are unpersuaded that the District Attorney's office should have beendisqualified from prosecuting defendant due to the fact that a member of the grand jurythat indicted defendant was subsequently hired by that office (compare People v Oakley, 104AD3d 1059, 1059-1060 [2013]). At the time defendant was indicted, the grand jurorin question was not an employee of the District Attorney's office and there is no evidenceof any bias or prejudice on the part of the grand juror or of any other basis for such grandjuror's disqualification, nor is there any evidence that his presence on the grand juryaffected its integrity (cf. Peoplev Revette, 48 AD3d 886, 888 [2008]). Defendant's reliance upon Judiciary Law§ 17 is misplaced (compare Matter of Czajka v Koweek, 100 AD3d 1136[2012], lv denied 20 NY3d 857 [2013]), and we decline his invitation to imposea per se rule requiring disqualification of a District Attorney's office in the circumstanceshere.
Defendant's claim that his sentence was harsh and excessive is also unavailing. Ourreview of the record reveals no extraordinary circumstances or abuse of County Court'sdiscretion warranting modification of the sentence (see People v Butler, 111 AD3d 1024, 1025 [2013]; People v Iadicicco, 100 AD3d1147, 1147 [2012]). In fact, County Court granted defendant's application for aviolent felony override and the sentence for each count of the indictment was only sixmonths more than the allowable minimum sentence for each conviction (seePenal Law § 70.02 [3] [b]).[FN2] Thus, the sentence reflected an appropriate measure of leniency, presumably inconsideration of defendant's mitigating circumstances.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Notably, defendant doesnot seek to withdraw his plea and it is unclear what relief he seeks with respect to thisargument.
Footnote 2: In addition, thesentences were imposed concurrently.