PEOPLE v. HOLT

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Wilbur E. HOLT, Also Known as Wilbert E. Holt, Appellant.

Decided: November 15, 1999

Present:  HON. STANLEY PARNESS, P.J., HON. HELEN E. FREEDMAN and HON. WILLIAM J. DAVIS, JJ. Legal Aid Society, New York City (Daniel L. Greenberg and Bertrand J. Kahn of counsel), for appellant. Robert M. Morgenthau, District Attorney of New York County, New York City (Donald J. Siewert of counsel), for respondent.

Judgment of conviction rendered September 17, 1997 (Vincent Vitale, J.H.O. at trial and sentence;  Millard L. Midonick, J.H.O. at resentence) reversed, on the law, and the information is dismissed.

 Absent any indication that defendant consented to a trial before a Judicial Hearing Officer, the conviction obtained below lacked an “ essential jurisdictional predicate” (Batista v. Delbaum, Inc., 234 A.D.2d 45, 46, 650 N.Y.S.2d 219) and must be vacated (see, CPL 350.20;  People v. Theodore, N.Y.L.J., July 19, 1991, at 27 col. 5 [App. Term, 2d Dept.] ).  The assignment of a criminal case to a Judicial Hearing Officer for trial in the absence of the requisite statutory consent affects “the organization of the court or the mode of proceedings prescribed by law” (People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894), and thus defendant's failure to raise the issue at the trial level does not preclude us from considering it on appeal.  (Id.) In any event, even were normal preservation requirements applicable, we would find this an appropriate case for the exercise of this court's discretion to take corrective action in the interest of justice (CPL 470.15[3][c] ).

 Since it does not appear that further proceedings on the single Administrative Code of the City of New York charge here involved would serve any useful penological purposes (see, People v. Burwell, 53 N.Y.2d 849, 440 N.Y.S.2d 177, 422 N.E.2d 822;  cf., People v. Allen, 39 N.Y.2d 916, 386 N.Y.S.2d 404, 352 N.E.2d 591), we dismiss the accusatory instrument, a disposition unopposed by the People.

PER CURIAM.