| People v Mitchell |
| 2009 NY Slip Op 03641 [62 AD3d 1045] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Scott G.Mitchell, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Kavanagh, J. Appeal, by permission, from an order of the County Court of Essex County(Meyer, J.), entered June 11, 2008, which denied defendant's motion pursuant to CPL 440.10 and440.20 to vacate the judgment convicting him of the crimes of driving while intoxicated andaggravated unlicensed operation of a motor vehicle in the second degree and to set aside thesentence, without a hearing.
On July 15, 2003, defendant was arrested in Essex County and charged with driving whileintoxicated. As defendant had a prior conviction for driving while intoxicated that occurred onJune 14, 2000, this charge was elevated to a felony. Defendant subsequently pleaded guilty in theCounty Court of Essex County (Halloran, J.) to felony driving while intoxicated, as well as themisdemeanor of aggravated unlicensed operation of a motor vehicle in the second degree, andwas sentenced to five years and three years of probation, respectively. Because defendant residedin Franklin County, the supervision of his probation was transferred from Essex County toFranklin County pursuant to CPL 410.80 (1).
In February 2008, defendant moved before the Essex County Court pursuant to CPL 440.10and 440.20 to set aside the felony conviction and sentence on the grounds that the June 14, 2000conviction for driving while intoxicated that served as the predicate offense was not [*2]valid and, therefore, he should not have been convicted of afelony.[FN*]County Court (Meyer, J.) denied the motion, concluding that the transfer of defendant'sprobation supervision to Franklin County divested Essex County of any jurisdiction over thematter and that defendant's motion to set aside his conviction, even though obtained in EssexCounty, should have been made in Franklin County. Defendant now appeals.
CPL 410.80 (2) provides that a sentencing court may transfer the supervision of adefendant's probation to another jurisdiction within the state and that, upon such transfer, "theappropriate court within the jurisdiction of the receiving probation department shall assumeall powers and duties of the sentencing court and shall have sole jurisdiction in the case."While it is true, as defendant points out, that the statute in question bears the title "Transfer ofsupervision of probationers," we do not agree that such a transfer only serves to divest thesentencing court of jurisdiction over issues that arise regarding defendant's compliance with theterms of his probation. The statute is explicit in entrusting "all powers and duties of thesentencing court" upon the court to which the matter has been transferred (CPL 410.80 [2]). As aresult, under the express wording of the statute, we are constrained to conclude, despite thelogistical problems that may result, once supervision of defendant was transferred to FranklinCounty, the Essex County Court no longer had jurisdiction to entertain defendant's CPL article440 motion.
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed.
Footnote *: Defendant's motion wassupplemented in April 2008 to set aside the misdemeanor and sentence imposed thereon.