New York Criminal Lawyer Blog
On November 22, 2006, defendant executed in open court a written waiver of his constitutional right to be prosecuted by indictment and consented to be prosecuted instead by a superior court information charging him with first-degree of grand larceny, which requires that the value of the property stolen exceed $ 1 million. More than three months earlier, defendant had been arrested and charged in a felony complaint with second-degree grand larceny, which requires that the value of the property stolen exceed $50,000, and second-degree criminal possession of a forged instrument. The felony complaint charged that defendant was the head of accounts payable at Nina Footwear and had stolen approximately $700,000 from the company by issuing forged checks to himself and a codefendant. Notably, the felony complaint also alleged that defendant had admitted to the police that he had issued the checks in question and forged the signatures. Thereafter, as the minutes of the several proceedings in criminal court prior to November 22 establish, defense counsel and the prosecutor were negotiating a disposition.
A New York Criminal Lawyer said at the outset of the proceedings, defense counsel made clear that defendant had not wanted and did not want to be indicted by a jury. The court noted that a superior court information had been prepared and that the People would proceed to a jury if a disposition was not reached. After the court stated that the felony complaint charged defendant with stealing hundreds of thousands of dollars from Nina Footwear, the prosecutor stated that “since the complaint was drafted, there has been a significant amount discovered on top of that. It is now over 1 million dollars.” The court then outlined on the record the disposition to which the parties had agreed: defendant would plead guilty to a superior court information charging him with first-degree grand larceny in exchange for a prison sentence of 2 1/3 to 7 years, pay some $ 100,000 in restitution and consent to the entry of judgment against him in the full amount of the theft, about $1.5 million.
Following discussions between the court and counsel, defendant signed a waiver of indictment form. As required by CPL 195.20, the written waiver of indictment contained a statement by defendant that he was aware that he had the right under the New York State Constitution to be prosecuted by a grand jury indictment, was waiving that right and consenting to be prosecuted by a superior court information, and that the information would be charging the offense specified in the written waiver and have the same force and effect as an indictment filed by the jury. Also as required by CPL 195.20, the written waiver was signed by defendant in open court in the presence of his attorney, and the consent of the District Attorney was endorsed thereon.
A Staten Island Criminal Lawyer said that, in response to questions from the court, defendant said he understood both the waiver form and that there would not be an indictment, “consented to be prosecuted by a piece of paper called a superior court information,” and wished to plead guilty to first-degree grand larceny, “the one and only count in the superior court information.” Defendant then admitted that, over a two-year period from 2004 to 2006, he had stolen more than $1 million from Nina Footwear. He agreed both to the negotiated prison term of 2 1/3 to 7 years and to forfeiture of more than $100,000. In addition, he signed a confession of judgment for approximately $1.5 million. During the plea allocution, when the court asked whether any other promises had been made, defendant responded, “I just want it to be over with.” He then confirmed that he both was pleading guilty voluntarily and in fact was guilty.
A New York Grand Larceny Lawyer said that, the Supreme Court convicted defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of 2 to 7 years.
The issue in this case is whether the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint, and thus warrants the reversal of his conviction.
The Court said that, as defendant tacitly concedes, his waiver of the right to indictment does not violate anything in article I, ยง 6 of the New York State Constitution. In relevant part, that provision expressly states that “a person held for the action of a grand jury” upon a charge of a felony offense, “other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a 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.” Each of these constitutional conditions was satisfied here and defendant makes no claim to the contrary.
With respect to the non-constitutional claims defendant does make, he misreads CPL 195.20 and contends that the superior court information was jurisdictionally defective “because it charged a higher level of offense than any charged in the felony complaint.” As noted above, after oral argument of this appeal, the Court of Appeals rejected this contention.
First of all, CPL 195.20 contains no prohibition on the inclusion in a superior court information of a count alleging a higher level offense than that or those charged in a felony complaint. In relevant part, the statute reads as follows: “The offenses named in a superior court information may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40”. Under CPL 200.20, the section applicable here, the level of an offense is irrelevant to the question of whether it is properly joinable with another offense.
Accordingly, the prohibition defendant finds in the second clause of this sentence is precluded by the plain language of the statute. As in People v Menchetti, the word “any” should be given its plain meaning. There, the Court of Appeals emphasized the same word in the first clause of this sentence in concluding that a superior court information could charge a lesser included offense of an offense for which a defendant was held for the action of a jury. Defendant reads CPL 195.20 as if it stated that the offenses named in a superior court information “may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40, except that no such joinable offense may be a higher level of offense than the offense or offenses for which the defendant was held for action of a jury.” That reading of the statute, however, is impermissible.
Giving the second sentence of CPL 195.20 its natural meaning accords with common sense. The usefulness and practicality of the flexibility it affords to both the prosecution and the defense is apparent. This case also illustrates the good sense of CPL 195.20. When defendant was arrested and arraigned on the felony complaint, the full extent of his theft was unknown. Unquestionably, and defendant does not dispute, the first-degree grand larceny offense is properly joinable with both of the crimes alleged in the felony complaint, second-degree grand larceny and second-degree criminal possession of a forged instrument, regardless of whether the first-degree grand larceny charge is based on the same criminal transaction as those lesser offenses. Of course, and as is discussed below, a defendant can secure significant benefits by waiving indictment.
Defendant is correct, however, that People v Zanghi requires reversal of his conviction. Zanghi was held for the action of a jury following his arraignment on a felony complaint charging criminal possession of stolen property in the fourth degree and the misdemeanor of unauthorized use of a motor vehicle in the third degree. He thereafter executed a written waiver of his right to indictment, consented to be prosecuted by a superior court information charging him solely with criminal possession of stolen property in the third degree and pleaded guilty to that crime. The Court of Appeals agreed with Zanghi’s claim that the superior court information was jurisdictionally defective.
As is evident, the Court held that the information was jurisdictionally defective because it did not meet what the Court believed to be a requirement of the statute, the requirement that it, “at a minimum, also include at least one offense that was contained in the felony complaint.” The Court expressly predicated its holding on the failure of the information to “meet that criterion”, not on the ground that it charged an offense higher than any for which Zanghi was held for the action of a grand jury.
As also is evident, this case is indistinguishable from People v Zanghi. Because the superior court information charged only first-degree grand larceny, and that offense is not one for which defendant was held for the action of the jury, under People v Zanghi it is of no moment that first-degree grand larceny is properly joinable with both crimes charged in the felony complaint. The information is jurisdictionally defective nonetheless.
The Court respectfully submits that CPL 195.20 does not require a superior court information to charge at least one of the offenses charged in the felony complaint. In the first place, the sentence states that “the offenses named may include any offense for which the defendant was held for action of a jury and any offense or offenses properly joinable therewith”. Giving the words “may” and “any” their ordinary meaning, the statute authorizes the information to include any of two categories of offenses those for which the defendant was held for action of the jury and those properly joinable with the former category without requiring the inclusion of an offense from both categories or only the former category.
The Court did not explain in People v Zanghi why it believed the word “therewith” supported its holding that an offense joinable with an offense for which the defendant was held for action of a jury may be charged in a superior court information only if the latter offense also is charged. If the Court believed, however, that the word refers back to the superior court information, suffice it to say that another reading of the sentence is reasonable. After all, the nearest antecedent to the word “therewith” is not an accusatory instrument but the phrase “any offense for which the defendant was held for action of a jury.” In any event, the sentence does not unambiguously require that when a joinable offense is charged in a superior court information, the information also must charge the offense charged in the felony complaint with which the former offense is joinable.
Notably, when a person who has been held for the action of a jury is indicted, nothing in the Criminal Procedure Law requires that the indictment allege at least one of the offenses for which he or she was held for the jury’s action. To the contrary, the relevant statute requires only that the indictment “must charge at least one crime”. Again, nothing in the constitutional text suggests that a defendant who waives indictment, but not a defendant who is indicted after being charged in a felony complaint, must be charged with at least one of the offenses for which he or she was held for the action of a grand jury.
In sum, the text of CPL 195.20 does not compel the construction adopted in People v Zanghi and unreasonable consequences follow from that construction. Accordingly, the statute should be construed to permit the information to charge an offense joinable with an offense for which the defendant was held for action of a grand jury, regardless of whether the latter offense also is charged. Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be so construed, if possible, that absurdity and mischief may be avoided. Courts normally accord statutes their plain meaning, but will not blindly apply the words of a statute to arrive at an unreasonable or absurd result. Where a statute’s language is capable of various constructions, the obvious spirit and intent’ of a statute necessarily informs the meaning and import to be accorded that language.
Finally, the Court said that the mandate of CPL 470.05 (1) is relevant here. The Legislature’s command is that “an appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties.” Although this statute does not expressly direct courts how to construe provisions of the Criminal Procedure Law, its directive should be considered when a court is attempting to resolve an ambiguity in one of those provisions. As between two possible readings of a provision of the Criminal Procedure Law, surely an appellate court should not adopt the one turning on technicalities that do not affect the substantial rights of the parties. This case presents a conflict between two obligations of intermediate appellate courts, the duty to abide the decisions of the Court of Appeals and the duty to abide the mandates of the Legislature. While I think we should resolve the conflict by abiding the former obligation, I also think the mandate of CPL 470.05 (1) is sufficient to justify my invitation to the Court of Appeals, however presumptuous the invitation may be, to reconsider People v Zanghi.
Accordingly, the Court ordered that Judgment, Supreme Court, New York County, convicting defendant, upon his plea of guilty, of grand larceny in the first degree, and sentencing him to a term of 2 to 7 years, reversed, on the law, the plea vacated, the superior court information dismissed, and the matter remanded to Supreme Court for further proceedings on the felony complaint.
Every person is guaranteed with his constitutional rights. If you have been improperly convicted of the crime of grand larceny, drug possession or sex crimes, you will need the representation of a New York Grand Larceny Attorney. New York Criminal Attorney at Stephen Bilkis and Associates can help you and make sure that we will exhaust all the possible remedies available to your case.