People v. Boston

• Decision Date: 26 April 1990
• Citation: 554 N.E.2d 64,555 N.Y.S.2d 27,75 N.Y.2d 585
• Parties: , 554 N.E.2d 64 The PEOPLE of the State of New York, Respondent, v. David BOSTON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 27

555 N.Y.S.2d 27

75 N.Y.2d 585, 554 N.E.2d 64

The PEOPLE of the State of New York, Respondent, v. David BOSTON, Appellant.

Court of Appeals of New York.

April 26, 1990.

[75 N.Y.2d 586] [554 N.E.2d 65] Leslie Crary and Philip L. Weinstein, New York City, for appellant.

Robert T. Johnson, Dist. Atty. (Patrick McCormick, Peter D. Coddington and Billie Manning, New York City, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

After indictment, a defendant's waiver of indictment and plea to a count interposed by Superior Court Information (SCI), rather than Grand Jury action, contravenes the unequivocal direction of CPL 195.10 and must therefore be nullified.

On March 7, 1986, a Bronx County Grand Jury indicted defendant, then 15 years old, for attempted murder in the second degree under an intentional murder theory (Penal Law § 125.25[1], two counts of assault in the first degree, and criminal possession of a weapon in the fourth degree. The indictment arose out of an incident in which defendant allegedly beat a 14 year old with a hammer, about the head, mouth and legs.

With the consent of defendant, his counsel, the People and the court, the following events ensued. After arraignment, the People filed an SCI charging defendant with attempted murder in the second degree under a depraved indifference theory (Penal Law § 125.25[2]. Defendant then waived his right to have the People present the charge contained in the SCI, and expressed his desire to proceed with--and signed--the SCI. Next, on the People's motion, the court consolidated the SCI with the indictment, making the depraved indifference count of the SCI count five of the indictment; defendant pleaded guilty to both attempted depraved indifference murder and first degree assault; and he was sentenced to two concurrent indeterminate terms of imprisonment.

Having served his sentence, defendant now seeks vacatur of the plea, arguing that waiver of indictment was impermissible under both the CPL and the State Constitution. A divided Appellate Division rejected defendant's contention and affirmed the conviction, 153 A.D.2d 534, 545 N.Y.S.2d 146 which we now reverse as a matter of statutory interpretation.

The State Constitution declares that no person shall be held to answer for an infamous crime unless upon indictment of the Grand Jury (N.Y. Const., art. I, § 6). The right to indictment by a Grand Jury has therefore been recognized as not merely a personal privilege of the defendant but a "public fundamental right," which is the basis of jurisdiction to try and punish an individual (Matter of Simonson v. Cahn, 27 N.Y.2d 1, 313 N.Y.S.2d 97, 261 N.E.2d 246; People v. Miles, 289 N.Y. 360, 45 N.E.2d 910; People ex rel. Battista v. Christian, 249 N.Y. 314, 164 N.E. 111). Infringement of that right constitutes a defect that cannot be waived by a guilty plea (People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281).

At one time article I, § 6 permitted no exceptions; its unequivocal command precluded any waiver of indictment (People v. Iannone, 45 N.Y.2d 589, 593, n. 4, 412 N.Y.S.2d 110, 384 N.E.2d 656). But a constitutional amendment, effective January 1, 1974, modified that requirement to permit a single exception. Now "a person held for the action of a Grand Jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his counsel." (N.Y. Const., art. I, § 6.)

To facilitate implementation of that exception, the Legislature enacted CPL article 195 (Waiver of Indictment), the centerpiece of which is CPL 195.10, specifying when a prosecution may proceed pursuant to information filed by the District Attorney instead of indictment by the Grand Jury. A defendant, according to CPL 195.10, may waive indictment and consent to be prosecuted by SCI when a local criminal court has held the defendant for the action of a Grand Jury; the defendant is not charged with a class A felony; and the District Attorney consents to the waiver. A defendant may waive indictment pursuant to this section either in the local criminal court in which the order was issued holding the defendant for action of a Grand Jury, at the time such order is issued, or in the appropriate superior court at any time prior to the filing of an indictment by the Grand Jury. This last provision--CPL 195.10(2)(b)--is the focus of defendant's argument, and dispositive of his appeal.

Of critical significance here is the direction of CPL 195.10(2)(b) that waiver of indictment be exercised "prior to the filing of an indictment by the grand jury." (Emphasis added.) The Legislature's own chosen words--more restrictive than article I, § 6 of the State Constitution from which the statute derives--plainly and explicitly preclude waiver by SCI after an indictment is filed. As we have noted time and again, where statutory language is clear and unambiguous, this court in interpreting a statute will give effect to the words used by a coequal branch of government, unless "such application would cause an anachronistic or absurd result contrary to the contextual purpose of the enactment." (Doctors Council v. New York City Employees' Retirement Sys., 71 N.Y.2d 669, 675, 529 N.Y.S.2d 732, 525 N.E.2d 454.)

No such consequence is evident here. Indeed, legislative history makes clear that the basic objective of article 195 was to permit waiver of indictment for defendants who wished "to go directly...