| People v Attea |
| 2011 NY Slip Op 03743 [84 AD3d 1700] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AnthonyAttea, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Douglas A. Goerss of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered October8, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession ofstolen property in the third degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of criminal possession of stolen property in the third degree (Penal Law § 165.50).Contrary to defendant's contention, the plea was not jurisdictionally defective (cf. People vZanghi, 79 NY2d 815 [1991]). Defendant was arrested for criminal possession of stolenproperty in the fourth degree and was issued an appearance ticket directing him to appear inBuffalo City Court (see CPL 150.20 [2]). A felony complaint was filed in City Court, theappropriate local court, with respect to that charge (see CPL 150.50 [1]), and a warrantwas issued for defendant's arrest when he failed to appear (see CPL 150.60). Defendantwas thereafter arrested on an unrelated charge and was held on the warrant issued on the chargeof criminal possession of stolen property in the fourth degree. The local court held defendant forthe action of a grand jury on that charge (see CPL 180.30 [1]). As part of a plea bargainin County Court that included defendant's waiver of the right to appeal and the People'sagreement not to seek persistent felony offender status, defendant agreed to waive presentation tothe grand jury and to plead guilty to a superior court information (SCI) charging him withcriminal possession of stolen property in the third degree (see CPL 195.10 [1] [a]).Inasmuch as defendant was not held for the action of a grand jury on that offense, the courtlacked jurisdiction to accept the plea to a higher charge (see People v Pierce, 14 NY3d 564, 568-571 [2010];Zanghi, 79 NY2d at 817). The People therefore filed a new felony complaint chargingdefendant with criminal possession of stolen property in the third degree and requested thatCounty Court exercise its discretion to sit as a local criminal court to arraign defendant on thenew felony complaint (see CPL 10.20 [3] [a]), and County Court granted that request.
We reject defendant's contention that the court lacked jurisdiction to accept his plea to theSCI because he had not been "arrested" prior to his arraignment on the felony complaint charginghim with criminal possession of stolen property in the third degree. A superior court is mandatedto sit as a local court to arraign a defendant on a felony complaint if the defendant is [*2]brought before it following his or her arrest (see CPL180.20 [2]); however, we reject defendant's contention that the court's jurisdiction is determinedby whether the defendant was actually arrested on the felony complaint. Here, we conclude thatthe court properly exercised its discretion pursuant to CPL 10.20 (3) (a) to sit as a local court inorder to arraign defendant on the felony complaint, and defendant was therefore held for theaction of the grand jury of the appropriate superior court (see CPL 180.30 [1]). The pleaentered in the superior court, i.e., County Court, thus properly comported with the requirementsof CPL 195.20.
To the extent that defendant's contention that he was denied effective assistance of counselsurvives the plea (see People vHamilton, 59 AD3d 973 [2009], lv denied 12 NY3d 854 [2009]; People vBurke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]), we conclude that itis without merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). We havereviewed defendant's remaining contention and conclude that it is without merit.
All concur except Centra and Carni, JJ., who dissent and vote to reverse in accordance withthe following memorandum.
Centra and Carni, JJ. (dissenting). We respectfully disagree with the conclusion of ourcolleagues that County Court had jurisdiction to accept defendant's plea to the superior courtinformation (SCI). We therefore dissent.
Contrary to the theory advanced by the People, the instances in which a superior court maysit as a local court for purposes of arraignment are defined by statute and are limited in nature.Specifically, CPL 10.20 (3) (a) provides in relevant part that "[s]uperior court judges may, intheir discretion, sit as local criminal courts for the . . . purposes . . .[of] conducting arraignments, as provided in" CPL 180.20 (2). Contrary to the view espoused bythe majority, superior court judges do not have unlimited discretion to decide when and underwhat circumstances they may sit as local criminal courts inasmuch as their discretion is limitedby CPL 10.20 (3) (a).
Pursuant to CPL 180.20 (2), "[w]hen a defendant arrested by a police officer for a felony hasbeen brought before a superior court judge sitting as a local criminal court for arraignment upon afelony criminal complaint charging such felony, such judge must, as a local criminal court,arraign the defendant upon such felony complaint." Here, it is undisputed that defendant was notarrested with respect to the second felony complaint. Thus, CPL 180.20 (2) is not applicable, andthe SCI is jurisdictionally defective.
We would therefore reverse the judgment, vacate defendant's plea, dismiss the SCI and remitthe matter to County Court for proceedings pursuant to CPL 470.45. Present—Scudder,P.J., Centra, Carni, Sconiers and Green, JJ.