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The PEOPLE of the State of New York, Respondent, v. Lamont BRYANT, Appellant.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered March 26, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.
In January 2018, defendant was charged, by two felony complaints and one misdemeanor complaint, with assault in the second degree, criminal possession of a weapon in the third degree and resisting arrest, after he allegedly stabbed the victim in the arm with a knife. He was indicted upon two of these charges, assault in the second degree and resisting arrest. Thereafter, defendant agreed to enter into a negotiated plea agreement whereby he would be required to waive indictment and consent to be prosecuted by a superior court information (hereinafter SCI) charging him with criminal possession of a weapon in the third degree, in exchange for a prison term of three to six years. He was also required to waive his right to appeal. Defendant pleaded guilty in accord with the terms of that agreement, and County Court accepted his plea and dismissed the indictment. After defendant unsuccessfully moved to withdraw his guilty plea, County Court sentenced him in accord with the plea agreement. Defendant appeals.
Defendant contends that his conviction and guilty plea should be vacated, advancing two arguments relative to the effectiveness of the SCI. He first asserts that the waiver of indictment was invalid, and the SCI therefore jurisdictionally defective, because the grand jury had already indicted him in relation to the subject incident, preventing the People from proceeding on an SCI as that procedure is permitted only prior to the filing of an indictment. This jurisdictional challenge, which is not subject to the preservation requirement, survives both defendant's unchallenged appeal waiver and his guilty plea (see People v. McCall, 194 A.D.3d 1197, 1197 n., 149 N.Y.S.3d 304 ; People v. Shindler, 179 A.D.3d 1306, 1306–1307, 118 N.Y.S.3d 266 ).
Pursuant to N.Y. Constitution, article I, § 6, “[n]o person shall be held to answer for a[n] ․ infamous crime ․, unless on indictment of a grand jury, except that a person held for the action of a grand jury upon a charge for such an offense, ․ with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel.” As alluded to by defendant, CPL article 195 further provides that a defendant “may waive indictment and consent to be prosecuted by [SCI] ․ in ․ the appropriate superior court, at any time prior to the filing of an indictment by the grand jury” (CPL 195.10, [b]). However, “[a] defendant may not waive indictment while he [or she] is already under indictment, unless the charge for which indictment is being waived is in an accusatory instrument separate from that upon which he [or she] was already indicted” (People v. Lopez, 10 A.D.3d 264, 265, 780 N.Y.S.2d 350 , affd 4 N.Y.3d 686, 798 N.Y.S.2d 356, 831 N.E.2d 413 ; see People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 ; People v. Verrone, 266 A.D.2d 16, 17, 698 N.Y.S.2d 8 ).
Defendant was arraigned and held for grand jury action on all three of the above charges, which were instituted by three separate criminal complaints, but the weapons charge to which he ultimately pleaded guilty was not submitted to the grand jury and was not part of the indictment. The waiver of indictment addressed the weapons charge alone. These facts are analogous to (People v. D'Amico, 76 N.Y.2d 877, 561 N.Y.S.2d 411, 562 N.E.2d 488 ), wherein a defendant's waiver of indictment was deemed valid given that the waiver of indictment only applied to a single charge that was part of a separate felony complaint that had not been submitted to the grand jury; “[t]hat [the] defendant had been indicted for [a different felony] did not prohibit a waiver of indictment on the new charge contained in the felony complaint” (id. at 879, 561 N.Y.S.2d 411, 562 N.E.2d 488). “[A] prior indictment, even if based on the same or related conduct, does not preclude a defendant from waiving his or her rights with respect to charges contained in another felony complaint, on which the [g]rand [j]ury has not yet acted” (People v. McKnight, 241 A.D.2d 690, 691, 660 N.Y.S.2d 165 ). Thus, as defendant was never indicted on the separate complaint containing the weapons charge to which he ultimately pleaded guilty, the subject prosecution by SCI was not prohibited (see People v. Lopez, 4 N.Y.3d 686, 689–690, 798 N.Y.S.2d 356, 831 N.E.2d 413 ; People v. D'Amico, 76 N.Y.2d at 879, 561 N.Y.S.2d 411, 562 N.E.2d 488; People v. McKnight, 241 A.D.2d at 691, 660 N.Y.S.2d 165; compare People v. Boston, 75 N.Y.2d 585, 587, 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 ).1
Defendant's second claim is that there is no evidence in the record that the written waiver of indictment was signed, purportedly rendering the waiver jurisdictionally defective; this argument is also unavailing. The transcript clearly reveals that defendant and his counsel signed the waiver document in the course of the plea proceeding, as County Court expressly noted that fact on the record; this is also later confirmed within the court's written order approving the waiver of indictment. This “record evidence sufficiently demonstrates that [defendant] signed the waiver in open court” (People v. Myers, 32 N.Y.3d 18, 21, 84 N.Y.S.3d 406, 109 N.E.3d 555 ; see People v. Alvarez, 191 A.D.3d 1015, 1015, 139 N.Y.S.3d 549 , lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 498, 170 N.E.3d 372 ; People v. Abreu, 189 A.D.3d 419, 419–420, 136 N.Y.S.3d 19 , lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 745, 165 N.E.3d 671 ). We therefore find that defendant's waiver of indictment and SCI are valid (see People v. Myers, 32 N.Y.3d at 21, 84 N.Y.S.3d 406, 109 N.E.3d 555; People v. Ramos, 189 A.D.3d 586, 586–587, 134 N.Y.S.3d 182 , lv denied 36 N.Y.3d 1059, 141 N.Y.S.3d 746, 165 N.E.3d 672 ).2
Turning to defendant's contention that County Court abused its discretion in denying his motion to withdraw his guilty plea, “[t]rial courts have a vital responsibility to ensure that a defendant who pleads guilty makes a knowing, voluntary and intelligent choice among alternative courses of action” (People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199  [internal quotation marks and citation omitted]; accord People v. Buchanan, 202 A.D.3d 1166, 1166, 160 N.Y.S.3d 494 , lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 366, 188 N.E.3d 558 ). “[A]bsent some evidence of innocence, fraud or mistake in its inducement, withdrawal of a guilty plea is generally not permitted” (People v. Burks, 187 A.D.3d 1405, 1406, 133 N.Y.S.3d 333 , lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 149, 167 N.E.3d 1284 ; see People v. Belile, 137 A.D.3d 1427, 1428, 27 N.Y.S.3d 729 , lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 ).
As an initial matter, defendant's argument that he was coerced into pleading guilty as a result of allegedly defective grand jury proceedings was not advanced in his motion to withdraw his guilty plea and is thus unpreserved (see People v. Phillip, 200 A.D.3d 1108, 1108, 157 N.Y.S.3d 312 ; People v. Gassner, 193 A.D.3d 1182, 1184–1185, 147 N.Y.S.3d 191 , lv denied 37 N.Y.3d 956, 147 N.Y.S.3d 523, 170 N.E.3d 397 ). His other arguments challenging the voluntariness of his guilty plea are “not precluded by the appeal waiver and ha[ve] been preserved by his unsuccessful motion to withdraw his plea” (People v. Walker, 173 A.D.3d 1561, 1561–1562, 101 N.Y.S.3d 675 ; see People v. Colon, 122 A.D.3d 956, 957, 994 N.Y.S.2d 725 ).
Defendant's assertion that he was under the influence of prescription narcotics at the time of his guilty plea, such that his plea was not knowing, voluntary and intelligent, is belied by the record. During the plea colloquy, defendant did indicate that he had taken medication in the prior few days that would affect him mentally, but he then affirmatively answered County Court's inquiry as to whether he was currently thinking clearly. Given defendant's sworn affirmation of his clear mind, this claim lacks merit (see People v. Gassner, 193 A.D.3d at 1184, 147 N.Y.S.3d 191; People v. Galagan, 35 A.D.3d 973, 974, 824 N.Y.S.2d 819 ). To the extent that defendant contends that he was coerced into a guilty plea due to the potential exposure to a life sentence and persistent violent felony offender status, this allegation “do[es] not amount to coercion but, rather, represent[s] the type of situational coercion faced by many defendants who are offered a plea deal, which did not render his plea involuntary” (People v. LaPierre, 189 A.D.3d 1813, 1815, 137 N.Y.S.3d 583  [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 138, 167 N.E.3d 1273 ; see People v. Seuffert, 104 A.D.3d 1021, 1021–1022, 960 N.Y.S.2d 738 , lv denied 21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 ). Accordingly, County Court's denial of defendant's motion was not an abuse of discretion.
ORDERED that the judgment is affirmed.
1. We approve this procedure in this instance without condoning it; although we are applying the cited authority, this is not the best practice (see People v. D'Amico, 76 N.Y.2d at 881, 561 N.Y.S.2d 411, 562 N.E.2d 488 [Kaye, J., dissenting]).
2. As there is no basis to dismiss the SCI as jurisdictionally defective, there is no need to consider whether reinstatement of the indictment would be proper. Defendant's argument concerning the People's alleged failure to present exculpatory information to the grand jury is therefore moot (see People v. Abdulla, 118 A.D.3d 1462, 1462–1463, 987 N.Y.S.2d 784 , lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 ; Matter of Duve v. Richards, 81 A.D.3d 1226, 1227, 917 N.Y.S.2d 744 ).
Egan Jr., Clark, Aarons and McShan, JJ., concur.
Response sent, thank you
Docket No: 111722
Decided: July 14, 2022
Court: Supreme Court, Appellate Division, Third Department, New York.
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