| People v Hodges |
| 2021 NY Slip Op 06626 [199 AD3d 1015] |
| November 24, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lawrence Hodges, Appellant. |
Lawrence C. Hodges, named herein as Lawrence Hodges, Malone, NY, appellant pro se.
Timothy D. Sini, District Attorney, Riverhead, NY (Marcia R. Kucera and Glenn Green ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (AnthonySenft, J.), rendered July 16, 2020, convicting him of burglary in the third degree and criminalpossession of stolen property in the fourth degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant waived his right to be prosecuted by indictment and, under a superior courtinformation, entered a plea of guilty to burglary in the third degree and criminal possession ofstolen property in the fourth degree. As a condition of the plea agreement, the defendant waivedhis right to appeal. As promised by the County Court at the time of his plea, the defendant wassentenced to consecutive terms of imprisonment upon his convictions of the two crimes. Thedefendant appeals.
The defendant's contention that the superior court information is jurisdictionally defectivebecause counts 2 and 3 thereof violate Criminal Procedure Law § 195.20 is notforfeited by his plea of guilty to that superior court information or precluded by his valid waiverof his right to appeal, and may be raised for the first time on appeal (see People v Pierce, 14 NY3d 564,568 [2010]; People v Griffin, 173AD3d 1203, 1205 [2019]). However, this contention is without merit.
A defendant held for the action of a grand jury may waive indictment and consent toprosecution by a superior court information (see NY Const, art I, § 6; CPL195.10 [1]; People v Milton, 21NY3d 133, 135 [2013]; People v D'Amico, 76 NY2d 877, 879 [1990]). In describingthe offenses to be charged in a superior court information, Criminal Procedure Law§ 195.20 provides that the offenses named in the written waiver of indictment andcharged in the subsequent superior court information "may include any offense for which thedefendant was held for action of a grand jury and any offense or offenses properly joinabletherewith pursuant to sections 200.20 and 200.40." "The waiver procedure is triggered by thedefendant being held for Grand Jury action on charges contained in a felony complaint and it is inreference to those charges that its availability must be measured" (People v D'Amico, 76NY2d at 879 [citation omitted]; see People v Pierce, 14 NY3d at 571). Thus, [*2]where the waiver of indictment and the superior court informationinclude at least one offense for which the defendant was charged in the felony complaint,Criminal Procedure Law § 195.20 permits a waiver of indictment and a superiorcourt information to also include "any offense" that is "properly joinable" pursuant to CriminalProcedure Law §§ 200.20 and 200.40 (see People v Pierce, 14 NY3d at572-573; People v Zanghi, 79 NY2d 815, 818 [1991]; People v Griffin, 173AD3d at 1205-1206).
Here, the defendant does not contest that count 1 of the superior court information, charginghim with burglary in the third degree, was an appropriate "triggering offense" for the waiver ofindictment, since he was charged by felony complaint with burglary in the second degree, ofwhich burglary in the third degree is a lesser included offense (People v Pierce, 14 NY3dat 572). Contrary to the defendant's contention, the remaining two counts of the superior courtinformation, charging the defendant with criminal possession of stolen property in the fourthdegree, were joinable with one another and with the burglary charge. Counts 2 and 3, bothcharging criminal possession of stolen property in the fourth degree, were joinable pursuant toCPL 200.20 (2) (c), as "such offenses are defined by the same or similar statutory provisions andconsequently are the same or similar in law." Counts 1 and 2 were joinable pursuant to CPL200.20 (2) (a), as these charges arose from the same criminal transaction. It follows that counts 3and 1 were joinable pursuant to CPL 200.20 (2) (d), since each of these charges was joinablewith count 2. Thus, contrary to the defendant's further contention, that the criminal possession ofstolen property counts of the superior court information were of a higher degree than the criminalpossession of stolen property charges he initially faced under two related misdemeanorinformations did not render the superior court information jurisdictionally defective, since theburglary charge served as a sufficient "jurisdictional predicate" (People v Zanghi, 79NY2d at 817), with which the two possession of stolen property charges were properly joined(see CPL 200.20 [2]; People v Pierce, 14 NY3d at 572-573; People vGriffin, 173 AD3d at 1206).
A challenge to the legality of a sentence survives a valid waiver of the right to appeal (see People v Lopez, 6 NY3d 248,255 [2006]; People v Callahan, 80 NY2d 273, 280 [1992]), and may be raisednotwithstanding a plea of guilty (see People v Laureano, 87 NY2d 640, 643 [1996]).However, contrary to the defendant's contention, the County Court was authorized to imposeconsecutive sentences for the defendant's convictions of burglary in the third degree and criminalpossession of stolen property in the fourth degree because those crimes involved separate anddistinct acts (see Penal Law § 70.25 [2]; People v Frazier, 16 NY3d 36, 40-41 [2010]; People v Brisco, 174 AD3d 639,639 [2019]). Mastro, J.P., Brathwaite Nelson, Iannacci and Genovesi, JJ., concur.