People v. Giuliano

• Decision Date: 18 May 1976
• Citation: 383 N.Y.S.2d 878,52 A.D.2d 240
• Parties: The PEOPLE of the State of New York, Respondent, v. Caesar GIULIANO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 878

383 N.Y.S.2d 878

52 A.D.2d 240

The PEOPLE of the State of New York, Respondent, v. Caesar GIULIANO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 18, 1976.

David A. Lewis, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City), for defendant-appellant.

Gerald M. Labush, New York City, of counsel (Robert M. Pitler, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

Before MARKEWICH, J.P., and MURPHY, SILVERMAN, CAPOZZOLI, and LANE, JJ.

SILVERMAN, Justice.

Defendant appeals from a judgment convicting him on his plea of guilty of the crime of attempted possession of a weapon as a felony (Penal Law §§ 265.05(9); 110.00), a class E felony, in satisfaction of a 20 count indictment.

Among other things, the indictment charged the defendant with possession of a weapon as a felony. However, the district attorney neglected to file the special information required by CPL § 200.60 subd. 2 charging that the defendant was previously convicted of a specified predicate crime. Defendant now urges that the conviction should therefore be modified so as to reduce it to a misdemeanor.

The defendant in this case was indicted for a felony; he is concededly guilty of acts constituting a felony; with advice of counsel and after plea negotiation, and with knowledge that he was pleading guilty to a felony, defendant pleaded guilty to a felony; the court and the district attorney accepted the plea on the basis that the defendant was pleading guilty to a felony. The conviction should not on appeal be reduced to a misdemeanor.

The defendant was indicted on a twenty count indictment charging attempted murder, attempted assault in various degrees, possession of a weapon as a felony, reckless endangerment, menacing, conspiracy, criminal solicitation, coercion, grand larceny, bribing a witness, tampering with a witness and obstructing governmental administration. The 5th court charged the defendant with the crime of POSSESSING A WEAPON, DANGEROUS INSTRUMENT AND APPLIANCE AS A FELONY. The count charged that he had possession of an imitation pistol, to wit, a blank cartridge pistol with the intent touse the same unlawfully against Guy Harrison. This count is a charge of violation of the then Penal Law § 265.05 subd. 9 which provides:

'Any person who has in his possession any . . . imitation pistol or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another is guilty of a class A misdemeanor, and he is guilty of a class D felony if he has previously been convicted of any crime.'

Under this section of course previous conviction of a crime is an essential element of the class D felony. CPL § 200.60 subd. 1 provides in part as follows:

'When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such higher offense may not allege such previous conviction. If a reference to previous conviction is contained in a statutory name or title of such an offense, such name or title may not be used in the indictment, but an improvised name or title must be used which, by means of the phrase 'as a felony' or in some other manner, labels and distinguishes the offense without reference to a previous conviction.'

Pursuant to that statute, the 5th count of the indictment in this case charged the defendant with that crime 'as a felony.' Section 200.60 subd. 2 goes on to provide 'An indictment for such an offense must be accompanied by a special information, filed by the district attorney with the court, charging that the defendant was previously convicted of a specified offense.'

In this case the district attorney neglected to file the special information.

I do not think that should invalidate the plea bargain which the defendant, the district attorney and the court knowingly made; certainly the defendant should not unilaterally be given a better bargain.

The obvious purpose of the requirement that the indictment shall not allege the previous conviction, although it is an element of the felony, is to protect defendant against the district attorney's proving at the trial the very damaging fact of the defendant's previous conviction of a crime if the defendant does not dispute such conviction. Accordingly, CPL § 200.60 subd. 2 provides that except where the defendant disputes the conviction in accordance with the procedures set forth in the statute 'the people may not ferer to such special information during the trial nor adduce any evidence concerning the previous conviction.' Here there was no trial.

The constitutional requirement of indictment by a grand jury in felony cases, State Constitution, Article 1, § 6, was here met. The grand jury indicted the defendant for a felony. 'The designation of the crime charged in the indictment as a felony gave notice to (defendant) of an alleged previous conviction.' Wright v. Davies, 41 A.D.2d 879, 880, 343 N.Y.S.2d 31, 32 (3d Dep't 1973). The special information is thus in the nature of a bill of particulars which tells the defendant which particular conviction the district attorney intends to rely on to sustain the felony indictment. But a plea of guilty is a waiver of many defects which could have been raised before the plea; it is among other things a waiver of the failure to provide a bill of particulars. People v. Hendricks, 31 A.D.2d 982, 297 N.Y.S.2d 838 (3d Dep't 1969).

The general rule is that a plea of guilty is a waiver of all non-jurisdictional defects. People v. Vina, 47 A.D.2d 895, 367 N.Y.S.2d 268 (1st Dep't 1975). As stated in Wright v. Davies, 41 A.D.2d 879, 880, 343 N.Y.S.2d 31 (3d Dep't 1973):

'The Grand Jury's work was completed once it handed down the indictment. There remained only a procedural step for the District Attorney to file with the indictment a separate information concerning plaintiff's previous convction. The indictment on its face was valid. Although it was defective and unable to withstand a subsequent motion to dismiss for failure to comply with subdivision 3 of section 275--b of the Code of Criminal Procedure, the court was not thereby divested of its initial jurisdiction. . . . In the instant case the indictment was a sufficient accusation, and the omission of the District Attorney to file the separate information was one of form, not jurisdictional.'

As the United States Supreme Court said in Tollett v. Henderson, 411 U.S. 258, 268, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973):

'A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures might be factually supported.'

There is another factor here which calls for sustaining the plea. The defendant did not plead guilty to the indictment or to any count of the indictment, he pleaded guilty to 'something else.' People v. Griffin, 7 N.Y.2d 511, 515, 199 N.Y.S.2d 674, 677, 166 N.E.2d 684, 686 (1960). He pleaded guilty to a lesser crime, almost a hypothetical crime, attempted possession of a weapon as a felony. The 5th count of the indictment charged the defendant with the crime of 'possessing a weapon, dangerous instrument and appliance as a felony,' a class D felony. Neither it nor any other count of the indictment charged an attempt to commit that crime, a class E felony. In such circumstances the truth of the facts alleged in the indictment, and thus the validity of the count as alleged in the indictment, and whether it is sufficiently supported, are no longer material. The Court of Appeals pointed out the distinction in People v. Griffin, 7 N.Y.2d 511, 515, 199 N.Y.S.2d 674, 677, 166 N.E.2d 684, 686 (1960) saying:

'Here, however, appellant did not plead guilty to any count in this indictment. His plea was to a lesser crime which the court is authorized to accept on recommendation of the prosecuting officer . . .. Where that occurs, the defendant does not admit the facts charged against him in the indictment. He pleads guilty to...