People v. Bhagat

• Decision Date: 06 June 2019
• Docket Number: 2017-1100 W CR
• Citation: 115 N.Y.S.3d 813 (Table),63 Misc.3d 162 (A)
• Parties: The PEOPLE of the State of New York, Respondent, v. Sunil BHAGAT, Appellant.
• Court: New York Supreme Court — Appellate Term

63 Misc.3d 162 (A)
115 N.Y.S.3d 813 (Table)

The PEOPLE of the State of New York, Respondent,
v.
Sunil BHAGAT, Appellant.

2017-1100 W CR

Supreme Court, Appellate Term, New York.

Decided on June 6, 2019

Bellantoni Law Firm, PLLC (Amy L. Bellantoni of counsel), for appellant.

Westchester County District Attorney (Christine DiSalvo and Raffaelina Gianfrancesco of counsel), for respondent.

PRESENT: THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.

ORDERED that the judgment of conviction is reversed, on the law, the May 13, 2015 oral order which, in effect, purported to allow the reduction of a felony charge to a misdemeanor offense upon the People's filing of a misdemeanor information is vacated, and the matter is remitted to the City Court for further proceedings on the felony complaint.

Defendant initially was charged in a felony complaint with assault in the second degree ( Penal Law § 120.05 [12] ). Subsequently, the People filed a misdemeanor information charging defendant with assault in the third degree ( Penal Law § 120.00 [1] ) and harassment in the second degree ( Penal Law § 240.26 [1] ). This led to the following colloquy between the court and defense counsel:

"[The Court]: All right. Entering a plea of not guilty, counsel?

[Defense Counsel]: I am. Are they reducing the felony complaint?

[The Court]: They just did.

[Defense Counsel]: Oh, okay. So, generally there's an inquiry under People versus Yolles, Your Honor.

[The Court]: I have no idea what you're talking about, counsel. They served and filed a superseding. Are you accepting it?

[Defense Counsel]: My client enters a plea of not guilty .... And for the record, we are objecting to the reduction, Your Honor.

[The Court]: Noted."

The case proceeded on the misdemeanor information to a nonjury trial in City Court. Defendant was acquitted of the misdemeanor assault charge and convicted of the harassment violation. On March 31, 2017, defendant was sentenced to a conditional discharge and an order of protection issued.

On appeal, defendant contends that the felony charge was improperly reduced, rendering the misdemeanor information a...