People v. Gassner

• Decision Date: 08 April 2021
• Docket Number: 110579, 112017
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason S. GASSNER, Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1182
147 N.Y.S.3d 191

The PEOPLE of the State of New York, Respondent,
v.
Jason S. GASSNER, Appellant.

110579, 112017

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

Calendar Date: March 18, 2021
Decided and Entered: April 8, 2021

147 N.Y.S.3d 192

Erin C. Morigerato, Albany, for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glen (John C. Tunney of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from a judgment of the County Court of Schuyler County (Morris, J.), rendered May 17, 2018, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree, and (2) by permission, from an order of said court, entered May 2, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In January 2017, defendant was arraigned in the Village of Watkins Glen Justice Court in Schuyler County on a felony complaint charging him with grand larceny in the fourth degree; he was served with a grand jury notice and advised of his right to a preliminary hearing. Shortly thereafter, defendant was remanded to state prison to begin serving a sentence for an unrelated parole violation. In April 2017, defendant appeared in County Court, at which time the court, sitting as the local criminal court, rearraigned defendant on the felony complaint and ordered him held for grand jury action. Defendant then waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with grand larceny in the fourth degree.

147 N.Y.S.3d 193

Under the terms of the plea agreement, defendant would plead guilty as charged, and his sentencing would be adjourned pending his release from state prison on the parole violation; at that point, defendant would be released on his own recognizance for 60 days – subject to various terms and conditions – pending sentencing upon his conviction for grand larceny. If defendant complied with the relevant terms and conditions, he would be permitted to withdraw his plea and plead guilty to petit larceny, whereupon he would be sentenced to one year in the local jail; if unsuccessful, his plea to grand larceny in the fourth degree would stand, and defendant was advised that the People would seek an indeterminate prison term of 2 to 4 years. Defendant pleaded guilty in conformity with the agreement and waived his right to speedy sentencing, and the matter was adjourned.

Prior to sentencing, defendant was arrested in violation of the plea agreement; in response to this development, defendant requested and was assigned new counsel and moved to withdraw his guilty plea. That motion was denied, and sentencing was adjourned until May 2018. At sentencing, defense counsel acknowledged that, in light of defendant's subsequent arrest, there was "an agreed-upon disposition of [2] to [4] years" in prison, but asked that County Court consider defendant for participation in the Willard drug treatment program. County Court sentenced defendant to the contemplated term of imprisonment, and defendant appeals. Defendant's subsequent pro se motion to vacate the judgment of conviction pursuant to CPL 440.10 was denied, and defendant appeals, by permission, from County Court's order.

Defendant initially contends that the waiver of indictment and resulting superior court information were invalid absent evidence that he was held over for action by the grand jury (see CPL 195.10 ). Although not forfeited by defendant's guilty plea (see People v. Clark, 169 A.D.3d 916, 917, 92 N.Y.S.3d 712 [2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 265, 124 N.E.3d 754 [2019] ; People v. Davenport, 106 A.D.3d 1197, 1197, 964 N.Y.S.2d 759 [2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ), we find this argument unavailing. Even assuming, without deciding, that the local criminal court did not initially hold defendant for action by the grand jury, the record reflects that County Court – sitting in a hybrid capacity – rearraigned defendant on the underlying felony complaint. After defendant, through counsel, acknowledged receipt of the felony complaint and waived his right to a preliminary hearing (see People v. Anderson, 149 A.D.3d 766, 767, 50 N.Y.S.3d 552 [2017] ), the court transferred the matter from the local criminal court to County Court and ordered defendant held for action by the grand jury (see People v. Cicio, 157 A.D.3d 651, 651, 67 N.Y.S.3d 468 [2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ; People v. Coxon, 130 A.D.3d 1098, 1099, 12 N.Y.S.3d 387 [2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; People v. Davenport, 106 A.D.3d at 1197, 964 N.Y.S.2d...