People v. Felli

206 A.D.3d 1452

170 N.Y.S.3d 687

The PEOPLE of the State of New York, Respondent,

v.Jay A. FELLI, Appellant.

111323

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

Calendar Date: June 2, 2022

Decided and Entered: June 30, 2022

Christopher Hammond, Cooperstown, for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glen (Sophie J. Marmor of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Schuyler County (Morris, J.), rendered March 28, 2019, convicting defendant following a nonjury trial of the crimes of promoting prison contraband in the second degree and criminal possession of a controlled substance in the seventh degree.

In May 2017, defendant was arrested on a bench warrant and ultimately brought to a local jail for processing. After being advised that he could not bring any contraband into the jail, defendant initially denied having any. Later, in the course of an ensuing strip search and while taking off his sneakers, defendant pulled out a small bag containing cocaine and delivered it to the officer performing the search, explaining that he had forgotten that the bag was in a side pocket of his sneaker. Defendant was thereafter charged by indictment with promoting prison contraband in the first degree (count 1) and criminal possession of a controlled substance in the seventh degree (count 2). He was also charged by the same indictment with perjury in the first degree (count 3) for having allegedly provided false testimony to the grand jury – i.e., that he did not know that he possessed a controlled substance when he entered the jail. Defendant later successfully moved to dismiss count 1 of the indictment, as County Court agreed that the evidence before the grand jury was legally insufficient to show that defendant voluntarily introduced the contraband into the jail and that the subject cocaine constituted dangerous contraband (see CPL 210.20[1][b] ). The People unsuccessfully moved to reargue, and they then appealed to this Court pursuant to CPL 450.20(1) to challenge the dismissal of the top count.

During the pendency of that appeal, the People advised this Court that County Court stayed the effectiveness of its dismissal order, purportedly pursuant to CPL 460.40, and that the case thus proceeded to a bench trial upon the full indictment. Defendant was found guilty of the lesser included offense of promoting prison contraband in the second degree and criminal possession of a controlled substance in the seventh degree, and he was acquitted on the perjury count. The People's appeal was accordingly dismissed as moot ( 172 A.D.3d 1652, 1653–1654, 100 N.Y.S.3d 430 [2019] ). County Court sentenced defendant to a split sentence of 30 days in jail and a one-year conditional discharge. Defendant appeals from the judgment of conviction.

We agree with defendant that County Court improperly stayed its dismissal order. The People had appealed to this Court pursuant to CPL 450.20(1). In pertinent part, that provision authorizes the People to appeal, as of right, from an order that dismissed an accusatory instrument or a count thereof pursuant to CPL 210.20. Except as provided for in CPL 460.40, the taking of an appeal from a judgment, sentence or order does not automatically stay the execution thereof. With respect to appeals by the People to an intermediate appellate court, an automatic stay results only in the case of an appeal pursuant to CPL 450.20(1–a) "from an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information" or an appeal pursuant to CPL 450.20(1) "from an order dismissing a count or counts of an indictment charging murder in the first degree" ( CPL 460.40[2] ). Plainly, none of those circumstances are present.

To the extent that the People maintain that there is ambiguity in CPL 460.40(2), we note that the stay provisions of CPL 460.40 were added at the same time that CPL 210.20 was amended to grant judges the authority to reduce counts of an indictment based upon legally insufficient evidence (see People v. Jackson, 87 N.Y.2d 782, 787, 642 N.Y.S.2d 602, 665 N.E.2d 172 [1996] ; L 1990, ch 209, §§ 13, 14). "Recognizing ... the possibility that a defendant might be tempted to exercise the statutory right to plead guilty to the reduced indictment before the People had a fair chance to respond" ( People v. Jackson, 87 N.Y.2d at 787, 642 N.Y.S.2d 602, 665 N.E.2d 172 ), CPL 210.20(6) was added to create an automatic 30–day stay solely for specifically described orders – the same limited circumstances addressed in CPL 460.40(2). "Designed to deter misuse of reduction orders by defendants, this automatic 30–day stay keeps the scales from tipping too far the other way by protecting the People's prerogatives both in making appropriate charging decisions and in conducting plea negotiations" ( People v. Jackson, 87 N.Y.2d at 787, 642 N.Y.S.2d 602, 665 N.E.2d 172 [citation omitted]). As other courts have observed, the Legislature elected not to include stay provisions for dismissals pursuant to CPL 210.20(1), other than those involving murder in the first degree,¹ or in the case of traditional appeals by the People pursuant to CPL 450.20(1) (see People v. Moquin, 77 N.Y.2d 449, 455–456, 568 N.Y.S.2d 710, 570 N.E.2d 1059 [1991] ; People v. Scerbo, 59 A.D.3d 1066, 1067, 872 N.Y.S.2d 763 [2009], lv denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ; see also CPL 450.55, as added by L 1990, ch 209, § 18 [providing that appeals pursuant to...