People v. Fernandez

• Decision Date: 09 March 2010
• Citation: 72 A.D.3d 303,897 N.Y.S.2d 158
• Parties: The PEOPLE, etc., respondent, v. Joao FERNANDEZ, appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 158

72 A.D.3d 303

The PEOPLE, etc., respondent,

v.Joao FERNANDEZ, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 9, 2010.

Steven Banks, New York, N.Y. (Martin M. Lucente of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Tonya Kerry of counsel), for respondent.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, DANIEL D. ANGIOLILLO, and JOHN M. LEVENTHAL, JJ.

LEVENTHAL, J.

The principal issue presented on this appeal, which is one of first impression for this Court, is whether CPL 210.05 precludes the Integrated Domestic Violence (hereinafter IDV) Part of theSupreme Court from exercising its jurisdiction under the New York State Constitution to try misdemeanor charges against a defendant in the absence of an indictment or a superior court information. We hold that it does not.

The defendant was charged with, inter alia, harassment in the second degree based on numerous harassing and threatening telephone calls he allegedly made to Margaret Leszcynska, his former paramour,with whom he had two children. On January 18, 2007, a misdemeanor complaint was filed charging the defendant with, inter alia, aggravated harassment in the second degree (three counts) ( see Penal Law § 240.30[1][a], [b]; [2] ). By order dated January 31, 2007, the action was transferred from the Criminal Court, Kings County, to the IDV Part of the Supreme Court, Kings County. The misdemeanor complaint was converted to an information by the complainant's attestation dated February 7, 2007. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment in the second degree.

The defendant argues for the first time on appeal that the IDV Part of the Supreme Court, to which his case was transferred from the Criminal Court, lacked jurisdiction over the instant matter because neither a grand jury indictment nor a superior court information was filed by a district attorney, as required by CPL 210.05, and he never waived his right to an indictment by a grand jury. Moreover, the defendant contends that there was no legislative mandate authorizing the transfer.

Preservation

As a threshold matter, we agree with the defendant that his contention regarding the jurisdiction of the IDV Part may properly be raised for the first time on appeal. The preservation rule does not apply to errors that "affect the organization of the court or the mode of proceedings prescribed by law" ( People v. Agramonte, 87 N.Y.2d 765, 769, 642 N.Y.S.2d 594, 665 N.E.2d 164 [internal quotation marks omitted]; see People v. O'Rama, 78 N.Y.2d 270, 277, 574 N.Y.S.2d 159, 579 N.E.2d 189; People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894; People v. Garbutt, 42 A.D.3d 665, 667, 839 N.Y.S.2d 833). Such errors fall into a "very narrow category of cases" ( People v. Kelly, 5 N.Y.3d 116, 119, 799 N.Y.S.2d 763, 832 N.E.2d 1179). The Court of Appeals has held that, in general, errors that fall under the exception exist "where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure" ( People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898). The exception tothe general rule was created "to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute" ( id. at 295-296, 383 N.Y.S.2d 573, 347 N.E.2d 898). However, the exception only applies to errors that "go[ ] to the essential validity of the [process and are so fundamental that] 'the entire trial is irreparably tainted ' " ( People v. Casey, 95 N.Y.2d 354, 366, 717 N.Y.S.2d 88, 740 N.E.2d 233, quoting People v. Agramonte, 87 N.Y.2d at 770, 642 N.Y.S.2d 594, 665 N.E.2d 164; see People v. Kelly, 5 N.Y.3d at 119-120, 799 N.Y.S.2d 763, 832 N.E.2d 1179; People v. Patterson, 39 N.Y.2d at 295-296, 383 N.Y.S.2d 573, 347 N.E.2d 898).

Here, the defendant's contention that the Supreme Court was not competent to entertain the action in the absence of an indictment or a superior court information as required by CPL 210.05 raises the issue of the court's jurisdiction and, thus, preservation was not required ( see People v. Wiltshire, 23 A.D.3d 86, 88, 800 N.Y.S.2d 702 [preservation not required where defendant claimed Supreme Court lacked jurisdiction over his case as a whole and, specifically, to accept his plea to a felony complaint]; People v. Jones, 18 Misc.3d 63, 64-65, 852 N.Y.S.2d 567 [reaching defendant's unpreserved claim that Supreme Court never acquired jurisdiction over his case because it was not initiated by indictmentor superior court information as required by CPL 210.05]; see also People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894 [mode of proceedings errors include "trial before a court not of competent jurisdiction"], citing People v. Bradner, 107 N.Y. 1, 4, 13 N.E. 87).

Jurisdiction of Supreme Court

The Supreme Court has general original jurisdiction in law and equity ( see N.Y. Const., art. VI, § 7[a]; Sohn v. Calderon, 78 N.Y.2d 755, 766, 579 N.Y.S.2d 940, 587 N.E.2d 807; Kagen v. Kagen, 21 N.Y.2d 532, 536, 289 N.Y.S.2d 195, 236 N.E.2d 475) and is " 'competent to entertain all causes of action unless its jurisdiction has been specifically proscribed' " ( Sohn v. Calderon, 78 N.Y.2d at 766, 579 N.Y.S.2d 940, 587 N.E.2d 807, quoting Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503; see Judiciary Law § 140-b; Matter of H.M. v. E.T., 65 A.D.3d 119, 123, 881 N.Y.S.2d 113). "[A]ny attempt by the Legislature to abridge, limit or qualify this broad jurisdiction of the Supreme Court is unconstitutional and void" ( People v. Darling, 50 A.D.2d 1038, 1038, 377 N.Y.S.2d 718, citing Busch Jewelry Co. v. United Retail Employees' Union, 281 N.Y. 150, 156, 22 N.E.2d 320).

In a criminal action, the superior courts, which include the Supreme Court and the County Court ( see CPL 1.20[20]; 10.10[2] ), have trial jurisdiction of all offenses in the following manner:

"(a) Exclusive trial jurisdiction of felonies; and

"(b) Trial jurisdiction of misdemeanors concurrent with that of the local criminal courts; and

"(c) Trial jurisdiction of petty offenses,¹ but only when such an offense is charged in an indictment which also charges a crime."

(CPL 10.20[1] ).

The local criminal courts' concurrent jurisdiction of misdemeanors is subject to divestiture by the Supreme Court ( see CPL 10.30[1][b]; [2]; see also CPL 170.20 [providing for removal of a case from local criminal court to superior court upon indictment] ). Specifically, CPL 10.30(2) provides that "[l]ocal criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries" (emphasis added). Pursuant to CPL 10.20(2), the Supreme Court has preliminary jurisdiction of all offenses but exercises such jurisdiction only by reason of and through the agency of grand juries ( see People v. Davis, 162 Misc.2d 662, 663, 618 N.Y.S.2d 194; see also CPL 100.05 [the only way in which a criminal action may be commenced in superior court is by filing therein an indictment by a grand jury] ).

IDV Court

The IDV Parts ² were created pursuant to an Administrative Order of the ChiefJudge dated January 6, 2004, an Administrative Order of the Chief Administrative Judge dated January 12, 2004, Part 41 of the Rules of the Chief Judge, and Part 141 of the Rules of the Chief Administrator of the Courts ( see22 NYCRR 41.1 ³, 141.1). The rules provide for the transfer to IDV Parts of the Supreme Court of "any ... case pending in another court in the same county" ( 22 NYCRR 41.1; see 22 NYCRR 141.4).

Authority for the transfer of misdemeanor cases to the IDV Parts of the Supreme Court is found under N.Y. Constitution article VI, §§ 28 and 30, and Judiciary Law § 211 ( see People v. Jones, 18 Misc.3d at 64, 852 N.Y.S.2d 567; People v. Gonzalez, 6 Misc.3d 1034[A], 2005 WL 545179). Under N.Y. Constitution article VI, § 28(c), the Chief Judge may establish "standards and administrative policies for general application throughout the state" (N.Y. Const., art. VI, § 28[c] ). Under N.Y. Constitution article VI, § 30, the Legislature has the power to regulate practice and procedure ( see People v. Gutierrez, 2001 N.Y. Slip Op. 40290[U], 2001 WL 1491394). Pursuant to that authority, Judiciary Law § 211 provides, in pertinent part, as follows:

"The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to:

"(a) the dispatch of judicial business, the designation of administrative judges, hours of court, assignment of terms and judges, transfer of judges and causes among the courts of the unified court system, the assignment and reassignment of administrative functions performed by judicial and nonjudicial personnel, the need for additional judicial or nonjudicial personnel, and the publication of judicial opinions"

(Judiciary Law § 211[1][a] [emphasis added] ).

Accordingly, Judiciary Law § 211 provides the Chief Judge with constitutional authority to regulate the transfer of cases among the courts.

Furthermore, N.Y. Constitution article VI, § 19 gives the Supreme Court the authority to transfer cases to itself. Section 19 provides, in relevant part:

"[a]s may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice"

(N.Y. Const., art. VI, § 19[a] [emphasis added] ).

Generally, constitutional provisions are presumptively self-executing ( ...