People v. Miller

• Decision Date: 15 May 2014
• Citation: 117 A.D.3d 1237,986 N.Y.S.2d 255,2014 N.Y. Slip Op. 03552
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond C. MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1237
986 N.Y.S.2d 255
2014 N.Y. Slip Op. 03552

The PEOPLE of the State of New York, Respondent,
v.
Raymond C. MILLER, Appellant.

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

May 15, 2014.

[986 N.Y.S.2d 256]

Richard V. Manning, Parishville, for appellant.

Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.

GARRY, J.

Appeals from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 15, 2011, convicting defendant upon his plea of guilty of the crimes of grand larceny in the fourth degree and attempted assault in the second degree.

[986 N.Y.S.2d 257]

While subject to probation supervision, defendant removed and discarded a GPS device from his ankle. As relevant here, he was thereafter charged with grand larceny in the fourth degree, upon the stated basis that the value of the device exceeded $1,000 ( seePenal Law § 155.30[1] ).¹ Defendant was returned to custody and, while in jail, was involved in an altercation with another inmate, resulting in a charge of assault in the second degree. Defendant ultimately entered into a plea bargain encompassing both crimes, pleading guilty, as a second felony offender, to grand larceny in the fourth degree and attempted assault in the second degree, with a commitment to concurrent sentences of 20 to 40 months in prison on each conviction.

While awaiting sentencing, defendant was arrested on a new offense, absconded, and was ultimately extradited from California. He thereafter moved to withdraw his plea, arguing, among other things, that the indictment charging him with grand larceny in the fourth degree was jurisdictionally defective because it charged him with violating Penal Law § 155.30(2) rather than Penal Law § 155.30(1), yet failed to allege facts constituting that crime. County Court denied the motion and amended the indictment to reflect the correct subsection. The court then found that defendant had violated the plea agreement by failing to comply with the conditions of his pretrial release-which included both not engaging in criminal activity and reporting to probation as directed-and enhanced the sentence to consecutive prison terms of 22 to 44 months on each conviction. Defendant was also ordered to pay $3,592.83 in restitution. Defendant appeals.²

Defendant's contention that the indictment charging grand larceny in the fourth degree is jurisdictionally defective does not warrant reversal. The indictment alleged facts...