PEOPLE v. SHEWBARRAN

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Christopher SHEWBARRAN, Appellant.

Decided: April 06, 2001

Present:  Hon. STANLEY PARNESS, P.J., Hon. WILLIAM J. DAVIS, Hon. LUCINDO SUAREZ, Justices. Robert A. Laureano, Bronx (Edward H. Wolf of counsel), for appellant. Robert T. Johnson, District Attorney of Bronx County (Allen H. Saperstein of counsel), for respondent.

Judgment of conviction rendered May 6, 1999 (Megan Tallmer, J.) affirmed.

The verdict was not against the weight of the evidence.   Issues relating to the complainant's credibility, including those raised by the absence of prompt outcry, were properly presented to the trial court, as fact finder, and no basis is shown to disturb its determinations.

 The defendant's present contention that he should have been afforded a jury trial is unpreserved and without merit.   Whether a defendant is constitutionally entitled to a jury trial hinges on the seriousness of the offense(s) charged, as “reflected in the legislative policy classifications designating crime severity and punishment.”  (People v. Foy, 88 N.Y.2d 742, 747, 650 N.Y.S.2d 79, 673 N.E.2d 589.)   Since none of the individual offenses upon which the defendant was tried carried a maximum statutory term of imprisonment greater than six months, no right to a jury trial attached (id.).   This is so notwithstanding that defendant's conviction triggered the registration and notification requirements of Megan's Law (Correction Law § 168 et seq.), a statute recognized to be “civil and remedial and not criminal and punitive in purpose” (Matter of M.G. v. Travis, 236 A.D.2d 163, 667 N.Y.S.2d 11, lv. denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956;  see, Doe v. Pataki, 120 F.3d 1263;  cert. denied 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126;  see also, People v. Stevens, 91 N.Y.2d 270, 669 N.Y.S.2d 962, 692 N.E.2d 985).

Defendant's remaining arguments are either unpreserved or lacking in merit.

CONCURRING MEMORANDUM

By a felony complaint dated July 27, 1997, defendant initially was charged, inter alia, with rape in the second degree, a class D felony, upon allegations that he engaged in sexual intercourse with the then 11-year old complainant “against her will”.   The felony rape charge was reduced on the People's motion on September 11, 1997, and defendant ultimately was tried upon a misdemeanor information alleging two incidents of sexual intercourse between defendant and the infant complainant, the first at some point during April of 1994 and the second on May 14, 1994, and charging, inter alia, two counts of attempted sexual misconduct (Penal Law §§ 110.00/130.20[1] ), two counts of attempted sexual abuse (Penal Law §§ 110.00/130.60[2] ), and two counts of menacing in the third degree (Penal Law § 120.15), each a class B misdemeanor.   Defendant was convicted on all counts following a Bench trial.

I concur in the result reached by the majority, but write separately to acknowledge my concerns over an unpreserved and, indeed, unbriefed aspect of the case:  the absence of a record showing that the reduction of the initial felony rape charge to non-felony status was accompanied by the requisite judicial inquiry (see, CPL 180.50;  People v. Yolles, 92 N.Y.2d 960, 683 N.Y.S.2d 160, 705 N.E.2d 1201).   Though the district attorney has been held to have wide latitude to determine how a crime is to be prosecuted, including the right to add, modify or reduce a charge (People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705;  People v. Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732), the Judge presiding is not a mere passive player in the process.   In circumstances where a complaint charges a felony, any reduction of the charge to the misdemeanor level is subject, after inquiry, to the court's “satisfaction that the reduction is in the interest of justice” (CPL 180.50[1];  People v. Yolles, supra ).   That is not to say that the reduction of the charges herein to the class B misdemeanor level may not have been warranted.   However, on the present state of the record, we are left to speculate as to the reasons underlying the decision to prosecute this case at a nonjury, class B misdemeanor level.   In the absence of a jurisdictional or “nonwaivable” defect (cf., People v. Grune, 175 Misc.2d 281, 282, 670 N.Y.S.2d 300), I must conclude that any noncompliance with the inquiry requirements of CPL 180.50 as may have occurred provides no basis for reversal.

PER CURIAM.