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Indictment Count Did Not State an Offense; Jurisdictional Defect Can Not Be Cured by Amendment

The Third Department determined one count of an indictment was jurisdictionally defective and the People’s attempt to cure the defect by amendment was prohibited by CPL 200.70, which does not allow amendment to fix the failure to state or charge an offense:

Here, count 3 of the indictment charged defendant with conspiracy in the second degree, a crime which requires an “intent that conduct constituting a class A  felony be  performed” (Penal Law § 105.15). While count 3 references the relevant statutory section for conspiracy in the second degree and expressly states that defendant acted “with intent that conduct constituting a class A felony be performed,” it does not include any statutory reference to the class A  felony listed in count 1 of the indictment. * * *

While it is true that “[t]he incorporation [in an indictment] by  specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon” …, such reference may be negated, as it was here, by the inclusion of conduct that does not constitute the crime charged …. People v Boula, 104053, 3rd Dept, 5-30-13

 

 

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Juvenile Delinquency Petition Jurisdictionally Defective; Insufficient Allegations that Pills Were a Controlled Substance

The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it:

The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear that “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” … . Petitioner must provide factual allegations that establish a reliable basis for inferring the presence.  The petition here is supported by only the conclusory statements of respondent’s classmate and an officer that the substance was Adderall. Their statements are not “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually[Adderall]” … .  Matter of Brandon A, CAF 12-01651, 231, 4th Dept, 4-26-13

 

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Discharge of Defense Attorney Was Abuse of Discretion; Issue Survives Guilty Plea 

The appellate division determined the trial court had abused its discretion in discharging defendant’s attorney and that the issue had not been forfeited by defendant’s guilty plea.  In affirming the appellate division, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:

Here, the claim to counsel is so deeply intertwined with the integrity of the process in Supreme Court that defendant’s guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court’s disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice. While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship, and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny.  People v Griffin, 46. CtApp, 4-2-13

 

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Guilty Plea Precludes Appeal of Statutory Speedy Trial Violation But Not Constitutional Speedy Trial Violation

By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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