| People v Catnott |
| 2012 NY Slip Op 00669 [92 AD3d 977] |
| February 2, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AntoineCatnott, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered December 17, 2010, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Felony complaints were filed against defendant charging him with criminal possession of acontrolled substance in the second degree and criminal possession of a controlled substance inthe third degree. Subsequently, a grand jury handed down an indictment charging defendant withcriminal possession of a controlled substance in the fifth degree. The People indicated that theywere going to be submitting additional charges to the grand jury upon receipt of weight analysisinformation from the State Police lab. Pursuant to a plea agreement, defendant waived indictmentwith respect to the additional charges, waived his right to appeal and pleaded guilty to a superiorcourt information charging him with criminal possession of a controlled substance in the thirddegree. In accordance with the plea agreement, the indicted charge was dismissed and defendantwas sentenced to 3½ years in prison and two years of postrelease supervision.[FN*] [*2]Defendant now appeals.
We find merit to defendant's argument that his waiver of indictment was not valid. While therecord does reflect that defendant executed the written waiver of indictment on September 15,2010, it is also clear from the record that he did not do so in open court on that date. The Peopleargue in response that the written waiver was misdated, and that it was actually executed in opencourt on September 17, 2010. Nothing in the transcript of defendant's appearance on that date,however, supports the People's contention. Thus, the record does not reflect that defendant'swritten waiver complies with CPL 195.20, as is strictly and unequivocally required (see People v Donnelly, 23 AD3d921, 921-922 [2005]; comparePeople v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; People v Sabin, 73 AD3d 1390,1391 [2010], lv denied 15 NY3d 809 [2010]; People v Wicks, 42 AD3d 585 [2007]). Accordingly, defendant'splea must be vacated.
Mercure, A.P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, and matter remitted to the County Court of Sullivan Countyfor further proceedings not inconsistent with this Court's decision.
Footnote *: We note that defendant wasinitially sentenced to three years of postrelease supervision. However, this period was reduced tothe legally authorized period of two years upon defendant's motion (see Penal Law§ 70.45 [2] [b]).