People v. Coss

178 A.D.3d 25

111 N.Y.S.3d 137

The PEOPLE of the State of New York, Respondent,

v.John E. COSS, Appellant.

109336

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

Calendar Date: September 5, 2019

Decided and Entered: October 17, 2019

Kelly L. Egan, Rensselaer, for appellant.

John L. Hubbard, District Attorney, Delhi (Sean T. Becker of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey and Devine, JJ.

OPINION AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Delaware County (Lambert, J.), rendered November 9, 2016, convicting defendant upon his plea of guilty of the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.

Defendant, who had two prior convictions for driving while intoxicated in 2008 and 2010, was charged by felony complaint in 2015 with the class E felonies of driving while intoxicated and aggravated unlicensed operation of a motor vehicle. He waived indictment and consented to be prosecuted by a superior court information (hereinafter SCI) charging him with the class D felony of driving while intoxicated after being convicted of that offense twice in the preceding 10 years, and the class E felony of aggravated unlicensed operation of a motor vehicle.¹ Pursuant to a plea agreement, defendant pleaded guilty to both felony counts as charged in the SCI and waived his right to appeal. County Court sentenced him to a prison term of 2 to 6 years on the conviction for driving while intoxicated and a lesser concurrent term on the remaining felony conviction.² Defendant appeals.

Defendant argues that the SCI was jurisdictionally defective because it contained a charge upon which he was not held for action by a grand jury, as required by the N.Y. Constitution (see N.Y. Const., art. I, § 6 ). "Preliminarily, we note that ‘[d]efendant's jurisdictional challenge is not precluded by either his guilty plea or his waiver of the right to appeal, and further, is not subject to the preservation requirement’ " ( People v. Jones, 173 A.D.3d 1569, 1570, 101 N.Y.S.3d 667 [2019], quoting People v. Hulstrunk , 163 A.D.3d 1177, 1178 n, 79 N.Y.S.3d 397 [2018] ; see People v. Pierce, 14 N.Y.3d 564, 570 n 2, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ; People v. Zanghi , 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 [1991] ).

Turning to the merits, "[t]he requirement that felony charges be prosecuted by indictment is grounded in the New York Constitution, which, since [it was amended in] 1974, has contained an exception allowing defendants to waive indictment under certain circumstances" ( People v. Pierce , 14 N.Y.3d at 567, 904 N.Y.S.2d 255, 930 N.E.2d 176 ; see People v. Menchetti , 76 N.Y.2d 473, 476, 560 N.Y.S.2d 760, 561 N.E.2d 536 [1990] ). As amended, N.Y. Constitution, article I, § 6 provides in relevant part: "No person shall be held to answer for a capital or otherwise 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, other than one punishable by death or life imprisonment, 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" ( N.Y. Const., art. I, § 6 [emphasis added]; see People v. Monforte , 33 N.Y.3d 1124, 1125, 107 N.Y.S.3d 795, 131 N.E.3d 902 [2019] ; People v. Pierce , 14 N.Y.3d at 568, 904 N.Y.S.2d 255, 930 N.E.2d 176 ). The Legislature implemented this constitutional amendment by enacting CPL article 195 (see L 1974, ch 467), which provides, as pertinent here, that an SCI "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 [CPL] 200.20 and 200.40" ( CPL 195.20 ; see People v. Menchetti , 76 N.Y.2d at 476, 560 N.Y.S.2d 760, 561 N.E.2d 536 ; People v. Griffin , 173 A.D.3d 1203, 1205–1206, 103 N.Y.S.3d 591 [2019] ).

The Court of Appeals has construed the phrase "held for the action of a grand jury" as used in both the constitutional and statutory waiver provisions to mean that an SCI may include an offense or offenses charged in a felony complaint or lesser included offenses, but may not include "greater offenses, which have additional aggravating elements" ( People v. Zanghi , 79 N.Y.2d at 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 ; accord People v. Milton , 21 N.Y.3d 133, 136, 967 N.Y.S.2d 680, 989 N.E.2d 962 [2013] ; People v. Price , 113 A.D.3d 883, 884, 978 N.Y.S.2d 409 [2014] ). In addition, "[t]he language of CPL 195.20 makes clear that where joinable offenses are included, the [SCI] must, at a minimum, also include at least one offense that was contained in the felony complaint" ( People v. Zanghi , 79 N.Y.2d at 818, 580 N.Y.S.2d 179, 588 N.E.2d 77 [internal quotation marks omitted]; see People v. Seals , 135 A.D.3d 985, 986 n, 22 N.Y.S.3d 653 [2016] ). However, the Court of Appeals has expressly left open the question presented here: whether, under CPL 195.20 and consistent with the constitutional waiver provision, an SCI that charges an offense for which a defendant was held for action of the grand jury may also charge a joinable offense which is "higher in grade or degree than the triggering offense" ( People v. Pierce , 14 N.Y.3d at 574–575, 904 N.Y.S.2d 255, 930 N.E.2d 176 ; see People v. Zanghi , 79 N.Y.2d at 818, 580 N.Y.S.2d 179, 588 N.E.2d 77 ).

The plain language of the pertinent provision in CPL 195.20 – "and any offense or offenses properly joinable therewith" – does not appear to prohibit such a charge (see People v. Pierce , 14 N.Y.3d at 575 n 3, 904 N.Y.S.2d 255, 930 N.E.2d 176 ; see also Peter Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 195.20 at 202). The First and Fourth Departments have construed this provision to permit an SCI to charge an offense in a higher degree or grade than the triggering offense, provided that it is properly joinable (see People v. Guerrero , 158 A.D.3d 548, 548, 68 N.Y.S.3d 720 [1st Dept. 2018], lv denied 31 N.Y.3d 1014, 78 N.Y.S.3d 284, 102 N.E.3d 1065 [2018] ; People v. Ashe , 74 A.D.3d 503, 503, 901 N.Y.S.2d 843 [1st Dept. 2010], affd 15 N.Y.3d 909, 913 N.Y.S.2d 123, 939 N.E.2d 140 [2010] ; People v. Jordan , 67 A.D.3d 1406, 1406–1407, 891 N.Y.S.2d 768 [4th Dept. 2009] ). However, the issue of the relationship between the broadly worded statutory joinder provision and the more limited construction that the Court of Appeals has applied to the constitutional and statutory phrase "held for the action of a grand jury" does not appear to have been raised in those cases. That issue is squarely posed here. Upon review, we conclude that, to avoid inconsistency with the N.Y. Constitution, CPL 195.20 must be interpreted to preclude the inclusion in an SCI of an offense or offenses of a higher grade or degree than the offense or offenses charged in a felony complaint, even when they are properly joinable.

Here, the class E felony of aggravated unlicensed operation of a motor vehicle in the first degree was charged both in the felony complaint and the SCI, thus satisfying the requirement that the SCI must contain at least one offense or lesser included offense that was charged in the felony complaint when a joinable offense is also included (see People v. Zanghi , 79 N.Y.2d at 818, 580 N.Y.S.2d 179, 588 N.E.2d 77 ). The second felony charged in the SCI – driving while intoxicated after being convicted of that offense twice in the preceding 10 years – was properly joinable with the triggering charge of aggravated unlicensed operation of a motor vehicle, as both occurred at the same time and place and were "based upon the same act or upon the same criminal transaction" ( CPL 200.20[2][a] ; see People v. Rogers , 94 A.D.3d 1246, 1248, 942 N.Y.S.2d 260 [2012], lv denied 19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ). However, driving while intoxicated after being convicted of that offense twice in the preceding 10 years is a class D felony and a greater offense than the class E felony of driving while intoxicated that was charged in the felony complaint (see Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][ii] ).³ As defendant was not held for the action of a grand jury on the class D felony, the resolution of this appeal turns upon whether this constitutional requirement applies to joinable offenses included in an SCI pursuant to CPL 195.20.

"[T]he constitutional requirement of prosecution by indictment implicates the personal rights of the defendant as well as a fundamental public right" ( People v. Menchetti , 76 N.Y.2d at 476, 560 N.Y.S.2d 760, 561 N.E.2d 536 ). The purpose of the waiver procedure established by the constitutional amendment and CPL 195.20 "is ‘to allow a defendant who wishes to go directly to trial without waiting for a grand jury to hand up an indictment to do so’ " ( id. , quoting Mem. of State Executive Dept., 1974 McKinney's Session Laws of N.Y., at 2006–2007), thus speeding the disposition of cases and avoiding unnecessary grand jury proceedings "without infringing upon the defendant's basic rights or the right of society to adequate protection" ( People v. Menchetti , 76 N.Y.2d at 477, 560 N.Y.S.2d 760, 561 N.E.2d 536 [internal quotation marks and citation omitted] ). In serving these purposes, the waiver procedure was intended to strike a balance between judicial efficiency and the constitutional right to prosecution by indictment. That balance would be disturbed if an offense upon which the defendant was not held for the action of a grand jury could be included in an SCI solely because it is joinable with the triggering offense. The constitutional considerations regarding the right to prosecution by indictment that underlie the well-established rule that an SCI may not charge greater offenses than those charged in a felony complaint necessarily apply with equal force to a joinable offense in a higher...