People v. JOSEPH VERRONE
| Decision Date | 04 November 1999 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ALEXANDER JOSEPH VERRONE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Concur — Sullivan, J. P., Nardelli, Wallach, Andrias and Buckley, JJ.
Defendant was originally indicted for three counts of sexual abuse in the third degree and one count of criminal possession of a weapon in the fourth degree. While that indictment was pending, defendant failed to appear for a scheduled court appearance and, as a result, the People filed a felony complaint charging him with bail jumping. After being arraigned on the felony complaint, defendant appeared in the trial part where he executed a waiver of indictment and agreed to be prosecuted by a Superior Court Information (SCI) charging him with bail jumping in the second degree. Defendant then joined in the People's application to consolidate the SCI with the pending indictment and pleaded guilty to bail jumping in the second degree to "cover" all charges then pending against him in the consolidated indictment. As part of his plea bargain, defendant also waived his right to appeal his conviction.
There is no merit to defendant's present claim that his waiver of indictment was jurisdictionally defective pursuant to CPL 195.20 because the bail jumping charge set forth in the SCI was not properly joinable with the charges in the original indictment. The sole offense included in the SCI, bail jumping in the second degree, was an offense for which "the defendant was held for action of a grand jury", thus meeting the pertinent statutory requirement of CPL 195.20. The other requirement that any additional offense or offenses must be "properly joinable therewith pursuant to [CPL] sections 200.20 and 200.40" is inapplicable because no other offenses were included in the otherwise properly obtained SCI. "The waiver procedure is triggered by the defendant being held for Grand Jury action on charges contained in a felony complaint (CPL 195.10 [1] [a]) and it is in reference to those charges that its availability must be measured" (People v D'Amico, 76 NY2d 877, 879).
While recognizing that People v D'Amico (supra) permits the People to file a post-indictment SCI where the SCI contains an additional charge related to the original indictment, defendant argues that D'Amico does not permit this type of end run around the holding in People v Boston (75 NY2d 585) that any waiver must be made prior to the filing of an indictment and does not authorize the filing of a post-indictment SCI on an unrelated charge. However, nothing in D'Amico supports such argument. Indeed, the Court specifically stated that, in Boston:
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...698 N.Y.S.2d 8 ... The PEOPLE of the State of New York, Respondent, ... Alexander Joseph VERRONE, Defendant-Appellant ... Supreme Court, Appellate Division, First Department, New York ... Nov. 4, 1999 ... Erica M. Fitzgerald, for Respondent ... William B. Carney, for Defendant-Appellant ... SULLIVAN, J.P., NARDELLI, WALLACH, ANDRIAS ... ...