| People v Price |
| 2014 NY Slip Op 00140 [113 AD3d 883] |
| January 9, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWalter Price, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Stein, J. Appeals (1) from a judgment of the County Court of Ulster County (Bruhn,J.), rendered September 24, 2007, convicting defendant upon his plea of guilty of thecrimes of criminal sexual act in the first degree and conspiracy in the fourth degree, (2)from an order of said court (McGinty, J.), entered May 28, 2010, which denieddefendant's motion to exonerate the surcharge imposed pursuant to CPL 420.10, and (3)by permission, from an order of said court (McGinty, J.), entered December 1, 2011,which partially denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacatethe judgment of conviction and set aside the sentence, without a hearing.
Defendant was charged by felony complaint with three counts of rape in the firstdegree and was later indicted on two counts of criminal sexual act in the first degree.While these charges were pending, defendant allegedly participated in a robbery and wascharged in a misdemeanor complaint with criminal facilitation in the fourth degree.Defendant thereafter appeared before County Court (Bruhn, J.) and, with respect to thecriminal facilitation charge, purported to waive indictment and was charged by superiorcourt information with the crime of conspiracy in the fourth degree. Defendant thenpleaded guilty, in full satisfaction of all charges, to one count each of criminal sexual actin the first degree and conspiracy in the fourth degree [*2]and waived his right to appeal. In accord with thenegotiated plea agreement, County Court imposed concurrent prison terms of1
Defendant argues, and the People concede, that his conviction for conspiracy in thefourth degree must be reversed. In New York, felony charges must be prosecuted byindictment, unless a defendant "held for the action of a grand jury upon a charge for suchan offense, other than one punishable by death or life imprisonment, with the consent ofthe district attorney, . . . waive[s] indictment by a grand jury and consent[s]to be prosecuted on an information filed by the district attorney" (NY Const, art I,§ 6; see CPL 195.10 [1]). Where an indictment waiver has been secured,however, the People may not charge in a superior court information a " 'greater offense[], which [has] additional aggravating elements' " (People v Milton, 21 NY3d 133, 136 [2013], quotingPeople v Zanghi, 79 NY2d 815, 817 [1991]). This is precisely what occurredhere. The misdemeanor complaint charged defendant with criminal solicitation in thefourth degree and the superior court information impermissibly charged the greateroffense of conspiracy in the fourth degree. Inasmuch as the improper inclusion of agreater offense is a jurisdictional infirmity (see People v Milton, 21 NY3d at 135;People v Pierce, 14 NY3d564, 574 [2010]), notwithstanding defendant's appeal waiver and plea, we mustreverse his conviction of conspiracy in the fourth degree and dismiss the superior courtinformation (see People v Pierce, 14 NY3d at 567; People v Zanghi, 79NY2d at 817; People v Menchetti, 76 NY2d 473, 475 n [1990]).[FN2]
In addition, as a result of the dismissal of the conspiracy charge, defendant's plea tocriminal sexual act in the first degree must be vacated. "[W]hen a guilty plea is inducedby the court's explicit promise that the defendant will receive a lesser sentence to runconcurrently with [*3]a sentence in another case, and [theother] conviction is overturned, the defendant may withdraw his plea and face theindictment, since the promise cannot be kept" (People v Pichardo, 1 NY3d 126, 129 [2003]; see People v Rowland, 8NY3d 342, 345 [2007]). Here, defendant pleaded guilty to criminal sexual act in thefirst degree with the promise that his sentence thereon would run concurrently with thesentence on the conspiracy charge. Inasmuch as "we cannot say that defendant wouldhave . . . pleaded guilty to the [criminal sexual act in the first degree charge]. . . had it not been for the . . . [conspiracy in the fourth degreeconviction], of which he now stands acquitted," his plea to this charge must be vacated(People v Pichardo, 1 NY3d at 130; see People v Rowland, 8 NY3d at345; People v Bennett, 107AD3d 577 [2013]; People vPuntervold, 60 AD3d 1090, 1090 [2009]). Defendant's remaining claim withrespect to the order of protection is academic.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, superior court information dismissed, and matterremitted to the County Court of Ulster County for further proceedings. Ordered that theappeals from the orders are dismissed, as academic.
Footnote 1: Subsequently, CountyCourt (McGinty, J.) resentenced defendant because a presentence investigation had notbeen ordered prior to his original sentence (see CPL 390.20 [1]). Defendant alsobrought applications for an order exonerating the surcharge imposed (see CPL420.10), to vacate both his sentences and convictions pursuant to CPL article 440 and foryouthful offender status, all of which were denied by County Court. Defendant's appealfrom the decision denying him youthful offender status is decided herewith (People vPrice, 113 AD3d 888 [2014]). Further, he has abandoned any arguments in relation to the other orders byfailing to address them in his brief (see People v Jones, 101 AD3d 1241, 1241 n [2012], lvdenied 21 NY3d 944 [2013]) and, in any event, such arguments are renderedacademic by this decision.
Footnote 2: We further note that thewaiver procedure, itself, was jurisdictionally infirm, as defendant was charged withcriminal facilitation in a misdemeanor complaint and had never been held forgrand jury action (see CPL 195.10 [1] [a]; [2] [a]; People v D'Amico, 76NY2d 877, 879 [1990]; Peoplev Rivera, 24 AD3d 367, 370 [2005]).