People v Johnson (Lee)

[*1] People v Johnson (Lee) 2005 NY Slip Op 52136(U) [10 Misc 3d 136(A)] Decided on December 19, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1648 W CR

The People of the State of New York, Respondent,

against

Lee A. Johnson, Appellant.

Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Brenda Dowery-Rodriguez, J.), rendered November 1, 2004. The judgment convicted defendant, upon his plea of guilty, of aggravated unlicensed operation of a motor vehicle in the second degree.

Judgment of conviction unanimously affirmed.

Defendant was initially charged by felony complaint with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [ii]). Following reduction of the felony complaint to the unclassified misdemeanor of aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2]), defendant entered a plea of guilty to same. Defendant contends on appeal that the reduction of the charge in a felony complaint was improper since the court failed to make a proper inquiry as to whether the facts and evidence provided a basis for charging the non-felony offense (see CPL 180.50).

An attempt to reduce charges in a felony complaint to offenses other than felonies is improper unless the reduction is done in accordance with CPL 180.50 (see People v Yolles, 92 NY2d 960 [1998]; People v Grune, 175 Misc 2d 281 [App Term, 9th & 10th Jud Dists 1997]; People v Jones, 151 Misc 2d 582 [App Term, 2d & 11th Jud Dists 1991], lv denied 79 NY2d 921 [1992]; People v Minor, 144 Misc 2d 846 [App Term, 2d & 11th Jud Dists 1989], lv denied 74 NY2d 666 [1989]). In People v Yolles (92 NY2d 960, supra), the Court of Appeals held that, pursuant to CPL 180.50, a reduction of a charge in a felony complaint to a non-felony offense may only occur if the court conducts an inquiry as to whether the facts and evidence provide a [*2]basis for charging the non-felony offense and, after such an inquiry, the court is satisfied that there is reasonable cause to believe the defendant committed the non-felony offense.
However, a plea of guilty constitutes a waiver of the right to claim that the court failed to conduct the inquiry required (see People v Hunter, 5 NY3d 750 [2005]). In view of the foregoing, the court need not consider the issue of compliance with CPL 180.50 and, accordingly, the judgment of conviction is affirmed.
Decision Date: December 19, 2005