| People v Simmons |
| 2013 NY Slip Op 07084 [110 AD3d 1371] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRobert Simmons, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Rensselaer County(Jacon, J.), rendered January 18, 2011, convicting defendant upon his plea of guilty ofthe crime of rape in the first degree.
Defendant waived indictment and pleaded guilty to a superior court informationcharging him with rape in the first degree. The charges stemmed from an incident thatoccurred on New Year's Eve in 2008, when defendant engaged in sexual intercourse byforcible compulsion with a 14-year-old victim. Defendant thereafter was sentenced to theagreed-upon prison term of 10 years followed by 20 years of postrelease supervision.Defendant now appeals, contending that County Court failed to comply with theprocedural requirements of CPL 195.10 and 195.20.
We affirm. Although the plea minutes are silent with respect to the precisecircumstances under which defendant executed the written waiver of indictment, areview of the underlying allocution reveals that County Court explained the effect of thewaiver, and defendant thereafter acknowledged that he was relinquishing his right tohave the matter presented to a grand jury. The record further reflects that the writtenwaiver—bearing the same date as the plea allocution—was executed incounsel's presence, and County Court's order approving the waiver expressly recites thatit was "executed in open court." Under these circumstances, we are satisfied thatdefendant's waiver of indictment conformed to the requirements of CPL 195.20 (see [*2]People v Davis, 84 AD3d 1645, 1646 [2011],lv denied 17 NY3d 815 [2011]; People v Wicks, 42 AD3d 585, 585 [2007]; compare People v Catnott, 92AD3d 977, 978 [2012]).
Defendant's related claim—that the waiver of indictment and resultingsuperior court information were invalid absent record evidence that he was held over forgrand jury action—is equally unavailing. Contrary to defendant's assertion, "thetransfer of [his] case to County Court is evidence that he was held by a local criminalcourt for grand jury action, and a mere void in the record is insufficient to establish hisclaim" (People vDavenport, 106 AD3d 1197, 1197 [2013], lv denied 21 NY3d 1073[2013]; see People vDennis, 66 AD3d 1058, 1058 [2009]; People v Barber, 280 AD2d 691,693 [2001], lv denied 96 NY2d 825 [2001]; People v Washington, 138AD2d 857, 858 [1988]). Additionally, County Court's order approving defendant'swaiver of indictment expressly stated that such waiver "fully complie[d]" with theprovisions of CPL 195.10 (seePeople v Sabin, 73 AD3d 1390, 1391 [2010], lv denied 15 NY3d 809[2010]; People v Dennis, 66 AD3d at 1058; People v Barber, 280 AD2dat 693; People v Washington, 138 AD2d at 858). Finally, in light of thepresumption of regularity accorded to judicial proceedings and defendant'scorresponding failure to tender any proof that would call that presumption into question,we find that the waiver of indictment was valid (see People v Hauenstein, 106 AD3d 1339, 1339-1340[2013], lv denied 21 NY3d 1042 [2013]; People v Sabin, 73 AD3d at1391; People v Dennis, 66 AD3d at 1058-1059; People v Barber, 280AD2d at 693; People v Washington, 138 AD2d at 858).
Peters, P.J., Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.