People v Sanders

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[*1] People v Sanders 2009 NY Slip Op 51693(U) [24 Misc 3d 1232(A)] Decided on July 22, 2009 County Court, Monroe County Connell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 22, 2009
County Court, Monroe County

The People of the State of New York

against

Sean Sanders, Defendant



2008-0570



Paul Dontenville, Esq.

Assistant District Attorney

For the People

William Pixley, Esq.

For the Defendant

John J. Connell, J.



The following constitutes the opinion, decision and order of the court.

The defendant moves for an order determining that he is not a persistent felony offender as defined in Penal Law section 70.10(1).

By order of June 1, 2009, this court entered a finding that the defendant is a persistent felony offender under Penal Law section 70.10(1) and set August 13, 2009 for a hearing on the issue. By this motion, the defendant controverts the allegation that a 2003 conviction to assault in the second degree should count as a prior conviction and that if such conviction is not to be counted, then defendant would not qualify to be sentenced as a persistent felony offender.

The defendant argues that since his plea of guilty to assault in the second degree in 2003 was to a charge not contained in the original charging felony complaint, nor to a lesser included offense, his 2003 conviction is jurisdictionally defective and a nullity (see CPL section 195.10). The People have conceded that defendant's 2003 assault in the second degree conviction was jurisdictionally defective, but argue that defendant may not now raise this issue since it is not an objection under the United States Constitution, but only a state constitutional and statutory violation.

In analyzing the identical provision of CPL section 400.21 as contained in CPL section 400.20, Peter Preiser, in the Practice Commentaries to McKinney's, wrote that it "would be difficult to conceive of a rational basis for drawing a distinction" between the United States and [*2]the New York Constitutions when affording a defendant the right to attack and eliminate a prior conviction. Just such an attack was made in People v. Johnson, (187 AD2d 990). There the defendant had not been held for Grand Jury action when he waived indictment and pleaded guilty to a superior court information. In finding that the defendant's right under the New York Constitution had thus been violated, the court found Johnson's plea jurisdictionally defective and his conviction a nullity. Similarly here, the defendant pleaded guilty in 2003 to a charge that was not contained in the felony complaint, nor a lesser included offense, and thus pleaded guilty to an offense for which he had not been held for Grand Jury action in violation of New York Constitution, art I, section 6 and CPL section 195.10(1)(a). The court, therefore, finds that the defendant's conviction to assault in the second degree in 2003 was jurisdictionally defective and a nullity and cannot be counted in determining that he is a persistent felony offender.

Accordingly, the defendant's motion is granted and the court determines that the defendant is not a persistent felony offender. In light of the court's ruling the other contentions raised by the defendant need not be addressed.

Signed this _____ day of July, 2009

_____________________________

Hon. John J. Connell

County Court Judge

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