| People v Clark |
| 2019 NY Slip Op 01224 [169 AD3d 916] |
| February 20, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stephen Clark, Appellant. |
Janet E. Sabel, New York, NY (Jeffrey Dellheim of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel;Masha Simonova on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura R. Johnson,J.), rendered March 25, 2016, convicting him of unauthorized use of a vehicle in the third degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was arraigned on a felony complaint charging him with various felonies andmisdemeanors. A few days later, the prosecutor and defense counsel appeared before the SupremeCourt in the absence of the defendant. The prosecutor offered the defendant to plead guilty tounauthorized use of a vehicle in the third degree, a class A misdemeanor. Defense counsel respondedthat the defendant was "interested in that disposition." The court then asked the prosecutor if she"want[ed] to reduce [the charges] for disposition purposes" before the defendant was brought into thecourtroom. The prosecutor responded that she did, and then moved to dismiss the felony counts. Thecourt granted the motion, and said that it would later recall the case. Later that day, when the case wasrecalled, the prosecutor stated, "at this time, the People are withdrawing their previous dismissal of thefelony counts. We are asking to retain the original docket, filed with the court on the arraignment date.The offer does remain the same." Defense counsel responded that, although the defendant was "goingto accept [the offer] regardless of what exact form it takes," she did not believe that the court wasauthorized to reinstate the felony counts that had been dismissed. The court then stated that the felonycounts were restored. Later that day, the case was recalled for a third time with the defendant present.The defendant signed, inter alia, a waiver of indictment and a waiver of preliminary hearing, and agreedto be prosecuted by superior court information. He thereafter pleaded guilty unauthorized use of avehicle in the third degree.
"Although [the] defendant's challenge to the validity of [his] waiver of indictment is not forfeited bya plea of guilty and is not precluded by any valid waiver of the right to appeal" (People v Grof, 158 AD3d 818, 818[2018]), the defendant's contention that his waiver of indictment was invalid is without merit. CPL195.10 (1) provides, in relevant part: "[a] defendant may waive indictment and consent to beprosecuted by superior court information when: (a) a local criminal court has held the defendant for theaction of a grand jury." " 'Being so held for the action of a Grand Jury involves the filing of afelony complaint on which [the] defendant has been arraigned and a finding after a preliminary hearing(unless waived by [the] defendant) that reasonable cause exists to believe that [the] defendantcommitted a felony' " (People vAnderson, 149 AD3d 766, 767 [2017], quoting People v Barber, 280 AD2d 691,692 [2001]). Here, contrary to the defendant's contention, the Supreme Court had the authority toreinstate the felony counts that had previously been dismissed at the request of the prosecutor (seePeople v Barnett, 254 AD2d 12, 12 [1998]; People v Clarke, 203 AD2d 916, 916[1994]; see also People v Francis, 132AD3d 893, 895 [2015], affd 28 NY3d 1034 [2016]; People v Rosa, 265 AD2d167, 167 [1999]). Therefore, the defendant was held for the action of a grand jury prior to hisexecution of the waiver of indictment. Austin, J.P., Maltese, Connolly and Christopher, JJ.,concur.