People v. Carter
| Decision Date | 30 April 1973 |
| Citation | 343 N.Y.S.2d 431,73 Misc.2d 1040 |
| Court | New York Supreme Court |
| Parties | The PEOPLE of the State of New York v. Stanley CARTER, Defendant. |
Frank Rogers, Sp. Asst. Dist. Atty., County of New York (Alan J. Tomaselli, Asst. Dist. Atty., of counsel), for the People.
Robert Kasanof, Legal Aid Society by David Cohen, County of New York, New York City, for defendant.
This is a motion to dismiss the indictment made under Criminal Procedure Law § 210.35(1) and § 210.40(1) due to the failure of the District Attoney to comply with the requirements of Section 190.50 of the Criminal Procedure Law, or in the alternative return the matter to the Criminal Court, Bronx County.
In the instant case, the defendant was arrested on August 12, 1972. Felony charges were reduced to misdemeanors on August 15, 1972 in Criminal Court, Bronx County as a result of an agreement between the prosecution and the defense, in exchange for which the defendant waived his right to a preliminary hearing. The case was presented to the Bronx County Grand Jury on September 19, 1972, and they filed the aforementioned indictment against the defendant on September 21, 1972. The defendant was then arraigned on October 11, 1972. He never received notice of the Grand Jury action so that he could exercise his right, under Section 190.50 of the Criminal Procedure Law, to appear before it.
Defendant contends that the district attorney is either bound by his original promise to the defendant or the case should be returned to the Criminal Court for a preliminary hearing. However, there is no absolute right to enforce bargains entered into between the prosecution and the defense. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), cannot be construed as providing a basis for such a right.
In Santobello, the United States Supreme Court recognized that the disposition of criminal charges by agreement between the prosecutor and the accused is an essential component of the administration of justice and, when properly administered, it is to be encouraged. The process, moreover, must be attended by safeguards to insure the defendant what is reasonably due under the circumstances. But Santobello does not give the defendant an absolute right to specific performance of all bargains entered into between the defense and the district attorney. It merely provides that where the defendant has entered a guilty plea in reliance upon that bargain, the defendant has a right either to withdraw his guilty plea and plead anew, or insist on enforcement of the agreement.
In that case, the defendant, after being indicted on two felony counts and after negotiating with the prosecuting attorney, withdrew his not guilty plea and entered a guilty plea to a lesser included offense. In exchange, the prosecutor agreed to make no recommendation as to the sentence to be imposed. The trial court accepted the guilty plea and set a date for sentencing, which was later postponed. A new prosecuting attorney appeared in the case and, apparently unaware of the agreement, recommended that the maximum one-year sentence be imposed. Although the defendant objected and sought adjournment of the sentencing hearing, the judge stated that he was not influenced by the prosecutor's recommendation and imposed the maximum sentence on the basis of a presentence report. The Supreme Court vacated the judgment and remanded the case to the state court to decide whether the circumstances required only that there be specific performance of the agreement on the plea, in which event the defendant should be resentenced before a different judge, or whether the relief sought by the defendant as to withdrawing his guilty plea should be granted, in which case the defendant would plead anew to the original charge on two felony counts.
It must be noted that when a defendant has pleaded guilty on the basis of a bargain between the prosecution and defense, he has relinquished some extremely significant constitutionally-protected rights in reliance upon the prosecutor's promise. This is not the situation in the instant case. The district attorney has refused to adhere to his agreement to reduce the charges against the defendant from felonies to misdemeanors, it is true, but there is no authority which goes so far as to require a prosecutor's promise to be enforced under all circumstances, regardless of the stage of the proceedings reached, and whether or not the defendant has pleaded guilty. In this respect, it is necessary to determine how the defendant has been prejudiced. He has not pleaded guilty to any charges; he has not, in fact, lost any rights to which he would otherwise be entitled were it not for the district attorney's promise.
Section 180.10(2) of the CPL states that 'The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury, but he may waive such right.' Here the defendant waived his right to a preliminary hearing in exchange for a reduction in the charges against him from felonies to misdemeanors. Certainly, it would appear to follow that the defendant may now withdraw his waiver, since the prosecution has failed to carry out its part of the agreement. But the defendant has not lost any rights as a result of the agreement, except that he no longer has the district attorney's promise to reduce the charges. The fact that no preliminary hearing has been held does not alter this situation.
Even had the defendant been provided with a preliminary hearing and, at that hearing, the charges against him had been dismissed, the grand jury would still have been entitled to indict. As the court stated in People v. Edwards, 19 Misc.2d 412, 189 N.Y.S.2d 39 (1959), a magistrate's preliminary hearing is distinct from a grand jury's inquiry and is not necessary in order to indict, since accusations of crime may, in the first instance, be presented to a grand jury for deliberation.
In People v. Jackson, 48 Misc.2d 1026, 266 N.Y.S.2d 481 (1965), the defendant was arraigned on an indictment. He moved for a preliminary hearing, since he was allegedly deprived of one upon his arraignment in the New York City Criminal Court. The court denied the request, explaining that the purpose of a preliminary hearing was to prevent improper commitment. To that end a magistrate would determine whether there was probable cause for holding the defendant until the grand jury had had an opportunity to act in the matter. If, prior to a preliminary hearing, the grand jury indicts, the purpose of the hearing has been accomplished, since the grand jury may only indict on legal evidence sufficient in its judgment to warrant a conviction by a trial jury.
The absence of a preliminary hearing in a criminal prosecution has been held not to constitute a denial of due process. Widziewicz v. Golding, 52 Misc.2d 837, 277 N.Y.S.2d 62 (1966). The People may submit a case to the grand jury despite the pendency of a preliminary hearing, and an indictment will supersede any prior proceedings in the lower court. People v. Hobbs, 50 Misc.2d 561, 270 N.Y.S.2d 732 (1966). A defendant has no constitutional or statutory right to a preliminary hearing, and on indictment will supersede any prior proceedings in the lower court. People v. Hobbs,50 Misc.2d 561, 270 N.Y.S.2d 732 (1966). A defendant has no constitutional or statutory right to a preliminary hearing as a condition precedent to a valid indictment. People v. Abbatiello, 30 A.D.2d 11, 289 N.Y.S.2d 287 (1968).
If, in exchange for the promise from the district attorney, the defendant had relinquished some meaningful right or rights to which he would otherwise have been entitled, then steps would have had to be taken to restore him to the position he was in prior to the understanding with the prosecution, or else specific performance of the agreement might have been appropriate. But in the instant case, the defendant has lost no rights or been prejudiced in any way, except that he is now confronted with felony charges instead of misdemeanors, exactly the position he was in at the start of the proceedings against him.
The cases cited by defendant, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), and People v. Richardson, 31 N.Y.2d 748, 338 N.Y.S.2d 117, 290 N.E.2d 153 (1972) deal with the issue of whether a...
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...of the CPL must be made within five days after arraignment upon the indictment or it is waived (CPL § 190.50(5)(c); People v. Carter, 73 Misc.2d 1040, 343 N.Y.S.2d 431). No such motion was made. The motion is 3. The motion to dismiss the indictment on the ground that additional evidence was......
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