The People Of The State Of N.Y. v. Pierce
| Decision Date | 16 February 2010 |
| Citation | 930 N.E.2d 176,14 N.Y.3d 564 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Marcellus PIERCE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
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Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy, David C. Schopp and Barbara J. Davies of counsel), for appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery and Donna A. Milling of counsel), for respondent.
Defendant waived indictment and pleaded guilty to a superior court information (SCI) charging him with two offenses: grand larceny in the fourth degree, an offense for which he had been held for action by the grand jury in a superior court felony complaint; and criminal possession of stolen property in the third degree, a charge included on the theory that it was joinable with the grand larceny offense under Criminal Procedure Law §§ 195.20 and 200.20(2)(c). Because the criminal possession offense was not properly joined with the grand larceny charge, defendant's conviction must be reversed and the SCI dismissed.
The charges in this case arose from allegations that defendant committed two unrelated crimes in 2007. In January 2007, the People contend that defendant stole $1,100 by deceiving the victim into turning over his bank card and then withdrawing funds from the victim's account. In connection with this incident, in addition to misdemeanor offenses charged in separate accusatory instruments, a felony complaint was filed in Buffalo City Court charging defendant with grand larceny in the fourth degree (Penal Law § 155.30[1] ). A few weeks later, defendant was allegedly found in possession of a vehicle that had previously been reported stolen. Defendant purportedly attempted to flee when stopped by the police and, after being placed under arrest, he was found with a pipe containing crack cocaine residue. This circumstance resulted in the filing of a felony complaint in Buffalo City Court charging defendant with criminal possession of stolen property in the fourth degree (Penal Law § 165.45[5] ), as well as various misdemeanor charges.
On separate dates, defendant was arraigned on each set of charges in Buffalo City Court. Thereafter, defendant was held for action of the grand jury on the felony offenses and those matters were divested to Supreme Court. The local court felony complaint pertaining to the grand larceny charge was subsequently dismissed and, pursuant to a plea agreement reached with the defense, the District Attorney filed a new superior court felony complaint charging defendant with grand larceny in the fourth degree. In open court, defendant signed a written waiver of indictment and agreed to be prosecuted by SCI charging him with the same offense in the superior court felony complaint-grand larceny in the fourth degree-together with an additional offense of criminal possession of stolen property in the third degree. Defendant then allocuted to his guilt on both charges with the understanding that concurrent sentences would be imposed and he would be treated as a second felony offender rather than a persistent felony offender. At sentencing, defendant was adjudicated a second felony offender based on two prior felony convictions and Supreme Court imposed the agreed-upon sentence of 3 1/2 to 7 years on the possession of stolen property count and 1 1/2 to 3 years on the grand larceny count, to be served concurrently.
Although he had waived his right to appeal when he entered his guilty plea, defendant appealed his conviction and, relying on our decision in People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 (1991), argued to the Appellate Division that the criminal possession of stolen property count was not properly included in the SCI. The Appellate Division affirmed the conviction (57 A.D.3d 1397, 869 N.Y.S.2d 846 [2008] ) and a Judge of this Court granted defendant leave to appeal (12 N.Y.3d 786, 879 N.Y.S.2d 63, 906 N.E.2d 1097 [2009] ).
The requirement that felony charges be prosecuted by indictment is grounded in the New York Constitution which, since 1974, has contained an exception allowing defendants to waive indictment under certain circumstances. Article I, § 6 provides:
CPL 195.20 directs that the waiver of indictment shall be in writing and further authorizes that “[t]he offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40.”
For purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the “same offense” and may be substituted for the original charge in a waiver of indictment and SCI ( see People v. Menchetti, 76 N.Y.2d 473, 560 N.Y.S.2d 760, 561 N.E.2d 536 [1990] ). But there is an exception to this rule when the felony complaint charges a class A felony for which waiver of indictment is not permitted. In that case, a defendant generally may not agree to be prosecuted on an SCI that contains a lesser included offense since such a substitution would be nothing more than an “end run” around the statutory prohibition against the use of a waiver of indictment by a defendant held for grand jury action on a complaint charging such a class A felony ( see People v. Trueluck, 88 N.Y.2d 546, 647 N.Y.S.2d 476, 670 N.E.2d 977 [1996]; cf. People v. D'Amico, 76 N.Y.2d 877, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990] ).
( People v. Boston, 75 N.Y.2d 585, 588-589, 555 N.Y.S.2d 27, 554 N.E.2d 64 [1990] [internal quotation marks and citations omitted] ).
The bill jacket for the legislation creating CPL article 195 also indicates that the new procedure was intended to facilitate plea bargaining (Mem. by Staff Attorney of Law Rev. Commn., Bill Jacket, L. 1974, ch. 467, at 5-6).
In this case, it is undisputed that the waiver of indictment and SCI were intended to effectuate a plea agreement between the People and the defense. In separate accusatory instruments, defendant was charged in local criminal court with grand larceny in the fourth degree, a class E felony relating to the theft incident, and criminal possession of stolen property in the fourth degree, a class E felony arising from the motor vehicle incident. The...
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