People v. Simmons

• Decision Date: 31 October 2013
• Citation: 110 A.D.3d 1371,973 N.Y.S.2d 865,2013 N.Y. Slip Op. 07084
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert SIMMONS, Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1371
973 N.Y.S.2d 865
2013 N.Y. Slip Op. 07084

The PEOPLE of the State of New York, Respondent,
v.
Robert SIMMONS, Appellant.

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

Oct. 31, 2013.

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.), rendered January 18, 2011, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

Defendant waived indictment and pleaded guilty to a superior court information charging him with rape in the first degree. The charges stemmed from an incident that occurred on New Year's Eve in 2008, when defendant engaged in sexual intercourse by forcible compulsion with a 14–year–old victim. Defendant thereafter was sentenced to the agreed-upon prison term of 10 years followed by 20 years of postrelease supervision. Defendant now

[973 N.Y.S.2d 866]

appeals, contending that County Court failed to comply with the procedural requirements of CPL 195.10 and 195.20.

We affirm. Although the plea minutes are silent with respect to the precise circumstances under which defendant executed the written waiver of indictment, a review of the underlying allocution reveals that County Court explained the effect of the waiver, and defendant thereafter acknowledged that he was relinquishing his right to have the matter presented to a grand jury. The record further reflects that the written waiver—bearing the same date as the plea allocution—was executed in counsel's presence, and County Court's order approving the waiver expressly recites that it was “executed in open court.” Under these circumstances, we are satisfied that defendant's waiver of indictment conformed to the requirements of CPL 195.20 ( see People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364 [2011],lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011];People v. Wicks, 42 A.D.3d 585, 585, 838 N.Y.S.2d 267 [2007];compare People v. Catnott, 92 A.D.3d 977, 978, 937 N.Y.S.2d 470 [2012] ).

Defendant's related claim—that the waiver of indictment and resulting superior court information were invalid absent record evidence that he was held over for grand jury action—is equally unavailing. Contrary to defendant's assertion, “the transfer of [his] case to County Court is evidence that he was held by a...