| People v McCoy |
| 2013 NY Slip Op 05854 [109 AD3d 708] |
| September 17, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert McCoy, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., at dismissalmotion; Edward J. McLaughlin, J., at jury trial and sentencing), rendered November 5,2008, convicting defendant of attempted assault in the first degree (two counts), burglaryin the second degree and criminal possession of a weapon in the third degree, andsentencing him, as a persistent felony offender, to an aggregate term of 16 years to life,unanimously reversed, on the law, the indictment dismissed, and leave granted to thePeople to apply for an order permitting resubmission of the charges to another grandjury.
In previously affirming defendant's conviction (91 AD3d 537 [1st Dept 2012]), werejected as unpreserved his argument that the People had violated CPL 190.75 (3) byre-presenting the attempted assault charges to a new grand jury, without courtauthorization, after a previous grand jury had adjourned without taking affirmative actionon those charges (91 AD3d at 537). Thereafter, in a different case, we held that a claimof error under CPL 190.75 (3) implicates the court's jurisdiction and, therefore, is notforfeited by a guilty plea (seePeople v Smith, 103 AD3d 430, 432-433 [1st Dept 2013], appealwithdrawn 21 NY3d 914 [2013], citing People v Hansen, 95 NY2d 227,230-232 [2000], and People v Jackson, 212 AD2d 732 [2d Dept 1995],affd 87 NY2d 782 [1996]). In two subsequent cases, we held that, given thejurisdictional nature of a claim of error under CPL 190.75 (3) as recognized inSmith, such a claim need not be preserved for appellate review (see People v Miller, 106 AD3d670, 671 [1st Dept 2013]; People v Dinkins, 104 AD3d 413 [1st Dept 2013]).
After we decided Smith, defendant moved for reargument of the instantappeal, urging that (as subsequently confirmed in Dinkins and Miller) thejurisdictional implications of the claim of error under CPL 190.75 (3) entitled him toappellate review of that claim even though it had not been preserved in the trial court.Although the application was made well beyond the 30-day limit for such motions (22NYCRR 600.14 [a]), this Court's precedent recognizes that such an otherwise untimelymotion, when based on an interim change in the law, may be entertained when themoving defendant has timely sought leave to appeal to the Court of Appeals and theleave application remains pending at the time the reargument motion comes before thisCourt (see People v Jones, 128 AD2d 405, 407 [1st Dept 1987], affd 70NY2d 547 [1987]). Since it is [*2]undisputed thatdefendant made a timely application to the Court of Appeals for leave to appeal from ourprevious decision, and we are advised that the leave application is being held in abeyancepending disposition of this motion, we may consider this motion on the merits.
Turning to the merits of the motion, we conclude that reargument should be grantedand that, upon reargument, our previous decision should be recalled and vacated, theconviction reversed and the indictment dismissed. As noted, our decisions inSmith, Dinkins and Miller establish that a claim of error underCPL 190.75 (3), being jurisdictional, need not be preserved for appellate review. To theextent the People urge us to reconsider whether any of these cases were correctlydecided, we decline to do so under the principle of stare decisis. We note that, inopposing the motion, the People do not dispute that, under People v Credle (17 NY3d556 [2011]) and our decision in Smith, the failure of the earlier grand jury inthis case to take affirmative action on the attempted assault charges before adjournmentconstituted a dismissal of those charges for purposes of CPL 190.75 (3). On constraint ofPeople v Miller (106 AD3d670 [1st Dept 2013], supra), we reverse the burglary and weapon possessionconvictions, and dismiss the indictments thereon, although the earlier grand jury voted toindict on those charges. As in Smith, Dinkins and Miller,however, the People are granted leave to seek an order, pursuant to CPL 190.75 (3),permitting them to re-present all of the charges to another grand jury.
For the guidance of the court and parties in the event defendant is retried and the newtrial results in a conviction, we note that the court properly exercised its discretion inadjudicating defendant a persistent felony offender. Moreover, the persistent felonyoffender statute (Penal Law § 70.10) is constitutional (People v Quinones, 12 NY3d116 [2009], cert denied 558 US 821 [2009]). Finally, to the extentdefendant's pro se claims are not rendered moot by the foregoing, those claims have beenconsidered and rejected. Concur—Tom, J.P., Friedman, DeGrasse, Richter andManzanet-Daniels, JJ.
The decision and order of this Court entered herein on January 24, 2012 (91 AD3d537 [2012]) is hereby recalled and vacated (see 2013 NY Slip Op 85392[U][2013] [decided simultaneously herewith]).