People v. Jones

• Decision Date: 14 December 1999
• Citation: 700 N.Y.S.2d 141
• Parties: 1999 N.Y. Slip Op. 10,583 The PEOPLE of the State of New York, Respondent, v. Howard JONES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 141

700 N.Y.S.2d 141

1999 N.Y. Slip Op. 10,583

The PEOPLE of the State of New York, Respondent, v. Howard JONES, Defendant-Appellant.

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

Dec. 14, 1999.

Ginger Suzan James, for Respondent.

Jan Hoth-Uzzo, for Defendant-Appellant.

SULLIVAN J.P., NARDELLI, WILLIAMS, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered June 19, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously reversed, on the law, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

Subsequent to the arrest of defendant and two co-defendants during a buy and bust operation, the Grand Jury charged all three with criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44(2)), because of their sale of two vials of crack cocaine. The second count in the indictment charged the co-defendants, but not defendant, with third-degree sale of a controlled substance (Penal Law § 220.39 ), based upon the same sale. The third count charged all three defendants with third-degree possession of the drugs (Penal Law § 220.16 ). During a bench conference prior to the presentation of evidence, the court indicated that it would not submit the first count of the indictment to the jury, apparently in reliance upon the mistaken assumption that defendant had also been charged in the second count. At the subsequent charge conference, when the court was made aware that the defendant was not charged in the second count, it initially determined to change the prior determination and submit the top count in the indictment as to all three defendants. However, defense counsel objected, arguing that they had limited examination of witnesses in accordance with the court's prior advisement. The court and counsel then agreed to the compromise of "submitting count one as amended, and dropping the section as school grounds. In essence, a submission of count two". The indictment, as amended by the court, charged defendant with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 ). This amendment requires reversal because the trial court did not have the authority to add a new charge to the indictment (CPL 200.70 ).

A criminal defendant has a constitutional right to be tried only upon indictment by the Grand Jury (N.Y. Const., Art. 1, § 6; CPL 200.70), and "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (see, People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336; People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656). The Grand Jury's indictment serves the...