People v. Brancoccio

• Decision Date: 26 April 1993
• Parties: The PEOPLE, etc., Respondent, v. James BRANCOCCIO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 856

596 N.Y.S.2d 856

189 A.D.2d 525

The PEOPLE, etc., Respondent, v. James BRANCOCCIO, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 26, 1993.

Philip L. Weinstein, New York City (Robert P. App, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Leonard Joblove, and Linda Breen, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and LAWRENCE, JJ.

MANGANO, Presiding Judge.

The question to be resolved on this appeal is whether the defendant's prosecution under Indictment Number 16451/89 is barred on the ground that it violates the defendant's constitutional protection against double jeopardy. In our view, this question must be answered in the negative.

I

On December 1, 1989, the defendant attempted to unlawfully enter a residential apartment, by opening its kitchen window. The defendant was arrested that very day, and was charged in a misdemeanor complaint, filed under Criminal Court Docket Number 9K080591, with criminal trespass in the second degree and criminal mischief in the fourth degree.

On December 4, 1989, the defendant, represented by an attorney from the Legal Aid Society, appeared in Criminal Court, Part AR2, for arraignment on the misdemeanor complaint. During the course of the arraignment, Assistant District Attorney Webster stated that the "[d]efendant has a long history of burglaries. He is a predicate felon, has an open case in AP1 which I believe is also burglary". The court expressed surprise that the case had been "written up" as a misdemeanor, and Assistant District Attorney Webster responded:

"I don't know either. I would have written it as attempted burglary as a felony. I will serve 170.20 and 190.50 notice in the event it's presented to the Grand Jury" (emphasis supplied).

Thereafter, both counsel approached the bench, a discussion was held off the record, and bail was set at $1500. The court then stated:

"AP3 for 170.70 purposes unless there is an indictment; December 8th" (emphasis supplied).

In the appendix to their brief, the People have provided a photocopy of the Criminal Court file jacket pertaining to the instant matter. It bears a handwritten notation "170.20" with a check mark next to it, and also notes, under the heading "ADJOURNMENT": "To Part AP3, To Date 12-8, 170.70".

On December 7, 1989, the Grand Jury heard the evidence in this case and voted an indictment charging the defendant with burglary in the second degree.

On December 8, 1989, the defendant appeared in Criminal Court, Part AP3. The defense counsel asked if there was an offer in this case to which the Assistant District Attorney answered: "The offer in this case is a burglary in the second degree, five to ten years". The defense counsel noted that defendant was only charged with misdemeanors but the Assistant District Attorney stated that according to his papers, it was a felony case. After a short discussion regarding the defendant's parole status, the defendant pleaded guilty to the crime of criminal trespass in the second degree in satisfaction of the misdemeanor complaint, and the court sentenced him to 90 days.

On December 13, 1989, the indictment, which had been voted on December 7, 1989, charging the defendant with burglary in the second degree, was filed with the Clerk of the Supreme Court, Kings County. On December 29, 1989, the defendant was arraigned on this indictment.

By notice of motion dated April 4, 1990, defendant moved to dismiss the indictment on the ground that "further prosecution is barred by reason of double jeopardy". Specifically, the defense counsel argued that the indictment, which was filed on December 13, 1989, after the defendant entered a plea of guilty pursuant to misdemeanor complaint docket number 9K080591, and which was based upon the same facts and offenses alleged in that complaint, constituted double jeopardy.

In response, the People argued that the action taken by the Grand Jury on December 7, 1989, i.e., its vote to indict the defendant, divested the Criminal Court of jurisdiction, and the guilty plea which was taken on December 8, 1989, was therefore a nullity. The People argued that the statements of Assistant District Attorney Webster to the court on December 4, 1989, constituted an application for an adjournment on the ground that he intended to present the case to the Grand Jury with a view to prosecuting the defendant by indictment. The People also submitted an affirmation from Assistant District Attorney Webster, dated April 20, 1990, which stated:

"(1) On December 4, 1989, I was assigned to Part AR-2 before the Hon. Michael Rooney.

"(2) The case of the People v. Michael [sic] Brancoccio, Docket No. 9K080591, was called for arraignment and I was the Assistant District Attorney who represented the People.

"(3) After evaluating the facts of the above case, I determined that the defendant should have been charged with a felony and that the case should be presented to the Grand Jury.

"(4) I completed the written notice pursuant to C.P.L. § 710.30 regarding a statement by the defendant and served it upon defense counsel along with oral notice pursuant to C.P.L. § 170.20 and written notice pursuant to C.P.L. § 190.50.

"(5) I marked the file appropriately and directed that the file be sent to the Grand Jury for presentation of felony charges and made it known to both defense counsel and the Court that such action was being undertaken, whereupon the Court granted an adjournment to give the People the opportunity to do so".

In an affirmation submitted in reply, defense counsel argued that the Criminal Court was not divested of jurisdiction over the instant misdemeanor complaint until the indictment was filed. Since the indictment was filed on December 13, 1989, defense counsel argued that the Criminal Court still had jurisdiction over this matter on December 8, 1989, and validly disposed of this case by the plea entered on that date. In the alternative, defense counsel argued that Assistant District Attorney Webster did not comply with CPL 170.20(2) in that he failed to state a clear intention to present this case to the Grand Jury.

The Supreme Court (Douglass, J.), denied the defendant's motion, holding, inter alia, that this case was governed by CPL 170.20(2), and that the Criminal Court was divested of jurisdiction on December 7, 1989, when the indictment was voted (see, People v. Brancoccio, 147 Misc.2d 1030, 558 N.Y.S.2d 803).

The defendant thereafter proceeded to trial and was convicted of attempted burglary in the second degree, upon a jury verdict.

II

The relevant statute which governs the case at bar is CPL 170.20. That statute provides in relevant part as follows:

" § 170.20. Divestiture of jurisdiction by indictment; removal of case to superior court at district attorney's instance

"1. If at any time before entry of a plea of guilty to or commencement of a trial of a local criminal court accusatory instrument containing a charge of misdemeanor, an indictment charging the defendant * * * is filed in a superior court, the local criminal court is thereby divested of jurisdiction of such misdemeanor charge and all proceedings therein with respect thereto are terminated.

"2. At any time before entry of a plea of guilty to or commencement of a trial of an accusatory instrument specified in subdivision one, the district attorney may apply for an adjournment of the proceedings in the local criminal court upon the ground that he intends to present the misdemeanor charge in question to a grand jury with a view to prosecuting it by indictment in a superior court. In such case, the local criminal court must adjourn the proceedings to a date which affords the district attorney reasonable opportunity to pursue such action, and may subsequently grant such further adjournments for that purpose as are reasonable...