People v. Johnson
| Decision Date | 08 July 1997 |
| Citation | 661 N.Y.S.2d 789,173 Misc.2d 254 |
| Parties | , 1997 N.Y. Slip Op. 97,392 The PEOPLE of the State of New York, Plaintiff, v. James F. JOHNSON, Defendant. |
| Court | New York County Court |
Griffith J. Winthrop, Winter Park, FL, for defendant.
Susan H. Lindenmuth, District Attorney of Yates County, for plaintiff.
W. PATRICK FALVEY, Judge.
The defendant has been accused of willfully violating the terms of his lifetime probation handed down by this Court on July 21, 1989, to wit, that he 1) failed to pay restitution in the amount of $210.00; 2) violated the laws of the State of Florida and 3) failed to notify his probation officer of his arrests in the State of Florida.
The defendant seeks dismissal of the proceedings on the following three grounds: 1) The warrant issued to return him to New York from Florida was defective; 2) The defendant was never accepted for probation supervision in Florida and 3) The defendant's "nolo contendere" pleas in Florida cannot be used against him to prove a violation of his New York probation.
The defendant also moved to set aside the plea, judgment and sentence pursuant to CPL 440.10 and/or recusal of the Court. These issues were decided on the record in open court after argument on May 6, 1997.
A plenary hearing on the alleged violations was held (pursuant to CPL 410.70), in the defendant's presence, on May 6th and June 3rd of 1997.
Based upon the papers submitted, accompanying legal memorandum, the hearing, the arguments had, submissions of counsel and all the proceedings herein the Court decides as follows:
A
This Court placed the defendant, James F. Johnson, on lifetime probation on July 21, 1989 after his conviction upon a plea of guilty to the crime of Criminal Sale of a Controlled Substance in the Third Degree, a class B Felony, in violation of Penal Law § 220.39(1) in full satisfaction of two counts of Criminal Sale of a Controlled Substance in the Third Degree. (Court Exhibits I and II, pp. 2-11).
Part of the terms and conditions of said probation (Exhibit 2) were that the defendant was to 1) pay a mandatory surcharge of $100.00 by August 15, 1989; 2) pay restitution and a designated surcharge in the amount of $210.00 by August 15, 1989 (condition 12); and 3) refrain from violating any federal, state or local law and notify the probation officer if arrested or questioned by any law enforcement official. (condition 4). (see, Exhibit 2).
The defendant heard the terms and conditions in open Court (Court Exhibit II, pp. 16-20) and acknowledged receipt of same in writing (Exhibit 2).
Furthermore, on July 21, 1989, the defendant executed an agreement to return to New York from Florida and waive any extradition to the State of New York. (Exhibit 3). He also requested, on that same day, permission to be supervised on probation in the State of Florida. (Exhibit 3).
Although it was anticipated that the defendant's probation would be transferred to Florida (Exhibit A), the defendant was allowed to leave New York for Florida before the transfer was complete. However, his Florida supervision was not accepted and Yates County was advised of this on March 23, 1990.
The Yates County Probation Department had no contact with the defendant from July 21, 1989 to 1996.
A Declaration of Delinquency was prepared on January 19, 1993 based on the defendant's failure to pay restitution and mandatory surcharge; that he had been charged with additional crimes, to wit: November 16, 1989: Counterfeiting of-Altering Lottery Tickets; June 11, 1991: Auto Theft and Trespassing and July 11, 1991: Probation Violation-Interference with Custody and Resisting Arrest; and that he failed to notify the probation department of a change in address. A warrant for his arrest was issued on January 30, 1993 based on said declaration of delinquency. (Exhibit E).
On May 14, 1996, the current Yates County Director of Probation received a telephone call from a detective from Dade County, Florida indicating that they had the defendant in custody.
An addendum to the pending violation of probation petition was filed on January 9, 1997 alleging the defendant's failure to pay the Court ordered restitution by August 15, 1989 and that he had been convicted of felony and misdemeanor offenses in the State of Florida to wit: February 9, 1990: Interference with Custody, a Third Degree Felony; July 5, 1991: Trespass in Conveyance, a Misdemeanor; October 31, 1991: Possession of Cocaine, a Third Degree Felony and Use or Possession of Drug Paraphernalia, a First Degree Misdemeanor and November 19, 1996: Grand Theft Motor Vehicle, a Third Degree Felony and Resisting an Officer Without Violence, a First Degree Misdemeanor.
These violations resulted in pleas of nolo contendere as indicated by the exemplified copies of the Court records of Dade County Florida (Exhibit 1) and, with the exception of the cocaine and drug paraphernalia charges, the defendant's own admissions. (Exhibit 4, paragraph 8 A-D).
The defendant testified that he was picked up for a Florida Burglary charge in May of 1996, and he waived extradition on the Court's warrant on his own volition.
He also testified that he had always lived in Florida, although he had never been supervised on probation by Florida authorities. He further stated that he agreed to go to Florida as part of the plea negotiation as he had family in Florida as well as a job opportunity.
The defendant's motion to dismiss is denied on all grounds.
"It is no defense to a criminal prosecution that a defendant was illegally brought within the jurisdiction of the Court, where the Court has jurisdiction to try and determine the issue before it." People v. Messengale, 29 Misc.2d 75, 216 N.Y.S.2d 837, citing People v. Eberspacher, 79 Hun 410, 29 N.Y.S. 796; People v. Jeratino, 62 Misc. 587, 116 N.Y.S. 1121. People v. Milton, NYLJ March 10, 1953, at 790, col 6 [General Sessions, New York County, Stevens, J.]
As for the status of defendant's probation supervision in Florida, the Court determines this issue is irrelevant. The transcript of the sentencing makes it clear that the Court sentenced the defendant to lifetime probation under the supervision of the Yates...
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Kasckarow v. Bd. of Examiners of Sex Offenders of New York, 10237/11.
...[2003], lv. denied 100 N.Y.2d 567, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ), a grounds for parole violation ( see People v. Johnson, 173 Misc.2d 254, 257, 661 N.Y.S.2d 789 [Yates County Ct. 1997] ), a grounds for disbarment ( see Matter of Ward, 18 A.D.2d 15, 16, 238 N.Y.S.2d 278 [1963] ), ......