People v. Harris

• Decision Date: 30 December 1999
• Parties: 1999 N.Y. Slip Op. 11,393 PEOPLE of the State of New York, Plaintiff-Respondent, v. Mark A. HARRIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 195

701 N.Y.S.2d 195

1999 N.Y. Slip Op. 11,393

PEOPLE of the State of New York, Plaintiff-Respondent, v. Mark A. HARRIS, Defendant-Appellant.

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

Dec. 30, 1999.

Gary Muldoon, Rochester, for Defendant-Appellant.

Christopher T. Valdina, Auburn, for Plaintiff-Respondent.

PRESENT: PINE, J.P., WISNER, HURLBUTT and BALIO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a plea of guilty to a superior court information (SCI) charging him with sodomy in the second degree (Penal Law § 130.45), sodomy in the third degree (Penal Law § 130.40), and possessing a sexual performance by a child (Penal Law § 263.16). Defendant contends that his waiver of indictment was invalid with respect to sodomy in the second degree and that his sentence is unduly harsh and severe.

Defendant was the subject of an investigation into numerous acts of molestation allegedly committed against several young boys. As a result of a search at his residence, police found numerous pictures, magazines and videos depicting young boys engaging in sexual acts. Defendant was arrested on felony complaints charging him with sodomy in the third degree committed in November 1997 and possessing a sexual performance by a child on January 7, 1998 as well as complaints charging him with two misdemeanors. Defendant confessed to certain acts and agreed to waive indictment and consented to be prosecuted by an SCI. The waiver covered two counts of sodomy in the second degree, in February and August 1993, and one count of possessing a sexual performance by a child on January 7, 1998. Defendant contends that the waiver of indictment was invalid with respect to sodomy in the second degree because it charged a higher crime than the felony complaint. We agree. We also note that the SCI differed from both the waiver of indictment and the felony complaint. The sodomy third charge in the felony complaint involved a different victim and a different date from the sodomy third charge in the SCI. The sodomy third charge in the felony complaint involved the same victim as one of the sodomy second charges in the waiver of indictment and the SCI but it involved a different incident that occurred some 4 1/2 years later.

Although defendant waived his right to appeal all issues except the sentence imposed, issues relating to alleged defects in the procedure for waiving indictment are not foreclosed by the waiver of appeal (see, People v. Boston, 75 N.Y.2d 585, 589, n. 2, 555 N.Y.S.2d 27, 554 N.E.2d 64). A defendant may waive indictment and consent to be prosecuted by an SCI (CPL 195.10). The offenses named in the waiver of indictment "may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith" (CPL 195.20). The SCI, which may not include an offense not named in the written waiver of indictment (see, CPL 200.15), must charge at least one offense for which defendant was held for Grand Jury action or a lesser included offense (People v. Menchetti, 76 N.Y.2d 473, 475, 560 N.Y.S.2d 760, 561 N.E.2d 536). "[W]here 'joinable' offenses are included, the information must, at a minimum, also include at least one offense that was contained in the felony complaint" (People v. Zanghi, 79 N.Y.2d 815, 818, 580 N.Y.S.2d 179, 588 N.E.2d 77).

The charge of possessing a sexual performance by a child was the only charge contained in the felony complaint that was also in the waiver of indictment and the SCI. Neither of the two sodomy counts charged in the waiver of indictment and neither of the two sodomy counts charged in the SCI were the same as the single sodomy charge in the felony complaint. Therefore, the sodomy charges in the waiver of indictment must be joinable with the charge of...