People v. Johnson , 636 N.Y.S.2d 282 ( 1995 )

OPINION OF THE COURT

Tom, J.

At approximately 1:50 a.m. on May 21, 1991, New York City Police Officers Kevin Kelly and Peter Gallagher received a radio run of "shots fired” by a Hispanic male wearing a black jacket in the vicinity of 161st Street and Park Avenue in the Bronx. While en route, the officers encountered defendant, who matched the general description in the radio transmission and was the only person in the vicinity, crossing the street in a quick manner.

The officers stopped and exited their car and Officer Kelly asked defendant to stop and talk for a minute. Defendant turned, looked at the officer, and ran as Officer Kelly gave chase. As the chase progressed, the officer noticed a gun in defendant’s right hand. Defendant subsequently turned and fired a shot at Officer Kelly, which shot Officer Kelly returned. Both shots, as well as a second shot fired by defendant, missed.

Defendant was thereafter apprehended a few blocks away by other officers and, upon searching defendant at the precinct, several vials of crack cocaine were recovered from defendant’s person. After being informed of his Miranda rights, and stating that he understood them, defendant agreed to give a statement in which he indicated that he ran from the officers because he was in possession of a gun, and that the gun fired accidentally as he was running.

By indictment number 4425/91, filed on June 5, 1991, a Bronx Grand Jury indicted defendant on two counts each of attempted murder in the first degree, attempted murder in the second degree, attempted aggravated assault upon a police or peace officer, attempted assault in the first degree and criminal possession of a weapon in the third degree. The indictment charged one count each of criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the fourth degree, resisting arrest and criminal possession of a controlled substance in the seventh degree. Pursuant to indictment number 2545/91, filed on March 25, 1991, a Bronx Grand Jury indicted defendant on charges of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree. Defendant was thereafter convicted under indictment number 4425/91 of two counts of attempted aggravated assault upon a police or peace officer, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree. After consulting with his attorney, defendant pleaded guilty, in full satisfaction of indictment number 2545/91, to criminal sale of a controlled substance in the third degree with the understanding that a 4¹/2-to-9-year sentence would be imposed to run consecutively with those imposed for the counts on which the jury found defendant guilty. On May 11, 1993, the trial court adjudicated defendant a predicate felon and sentenced him in accordance with the plea and sentence agreement.

We find that defendant’s claims of error with regard to the counts tried under indictment number 4425/91 are without merit. We further find that defendant’s contention that the IAS Court was without jurisdiction to adjudicate defendant guilty, based on his plea, of criminal sale of a controlled substance in the third degree, since he was not charged with this offense under indictment number 2545/91, is without merit. The IAS Court had jurisdiction to adjudicate defendant’s guilty plea.

We initially note that the dissent’s reliance on People v Boston (75 NY2d 585) is misplaced. In Boston, defendant pleaded guilty to a criminal count interposed in a superior court information after having been indicted by a duly convened Grand Jury, thereby waiving the Grand Jury indictment. The Court of Appeals, applying the provisions of CPL 195.10 (2) (b), to wit, that waiver of an indictment be exercised "prior to the filing of an indictment by the grand jury”, found that a waiver "cannot be accomplished after indictment” (supra, at 589). As a result, defendant’s plea of guilty to a count in the information, filed after the Grand Jury had acted, was rendered invalid and void. The dissent fails to point out that the defendant pleaded guilty to a count interposed in the information and not in the indictment, which is not the situation in this case.

The facts in the case at bar are clearly distinguishable. The defendant’s plea herein was made pursuant to a valid indictment and, as a result, the court maintained jurisdiction to accept defendant’s guilty plea. The constitutional prohibition that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” (NY Const, art I, § 6) is a restriction imposed upon the State to prevent prosecutorial excess and is not directed to the courts. Once the People’s case was presented to a Grand Jury and an indictment was returned against the defendant, the constitutional mandate of article I (§ 6) was fulfilled. The IAS Court, therefore, had jurisdiction, and an error of the court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense nor one contained in the indictment does not affect the court’s jurisdiction to entertain the action or to convict as to that crime CPeople v Ford, 62 NY2d 275).

Since the purported error was not jurisdictional, it may be waived if timely objection was not made (CPL 470.05 [2]; People v Ford, supra; People v Lopez, 71 NY2d 662, 665; People v Pellegrino, 60 NY2d 636). Here, defendant failed to preserve his claim for appellate review.

Further, since the plea was taken pursuant to a proper indictment and as part of a bargain struck for defendant’s benefit, defendant waived all nonjurisdictional defects in the plea proceeding (People v Taylor, 65 NY2d 1, 5; People v Mathie, 194 AD2d 630, lv denied 82 NY2d 722; People v Williams, 185 AD2d 260, lv denied 80 NY2d 911). As stated by the Court of Appeals in People v Taylor, supra, at 5): "A guilty plea generally represents a compromise or bargain struck after negotiation between defendant and the People. As such, it marks the end of a criminal case, not a gateway to further litigation.”

In the matter before us, defendant’s claims neither relate to the court’s jurisdiction nor to the voluntary and knowing nature of the plea. As a result, since the plea offered by the People and accepted by defendant was freely taken as part of a bargain, it is not rendered invalid because of an alleged inconsistency with the crime charged (People v Adams, 57 NY2d 1035, 1038; People v Mathie, supra, at 631) or the fact that defendant did not plead guilty to a crime charged in the indictment or to any lesser included offense (People v Ford, supra; People v Williams, supra). As succinctly stated by the Court of Appeals, a bargained plea " 'makes unnecessary a factual basis for the particular crime’ ” (People v Adams, supra, at 1038, quoting People v Clairborne, 29 NY2d 950, 951).

Clearly, defendant herein cannot argue that he did not receive a benefit as the result of his plea bargain, for if he had been convicted of the crimes set forth in indictment number 2545/91, taken in conjunction with his status as a second felony offender, he would have been eligible to be sentenced to a term of from 8¹/s to 25 years.

Finally, we would note that we also disagree with the dissent’s holding that a defendant cannot plead guilty to a crime not submitted in an indictment as the Court of Appeals has found that a defendant may even plead guilty to a nonexistent crime (i.e., attempted manslaughter) in full satisfaction of an indictment (People v Martinez, 81 NY2d 810, 811; People v Foster, 19 NY2d 150, 153).

Accordingly, the judgment of the Supreme Court, Bronx County (Gerald Sheindlin, J.), which was rendered on May 11, 1993 after a jury trial and which convicted defendant of two counts of attempted aggravated assault upon a police officer or peace officer, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree, and also convicted defendant, upon his guilty plea, of criminal sale of a controlled substance in the third degree, and sentenced him to concurrent terms of 7¹/2 to 15 years on the assault counts, 3¹/2 to 7 years on the weapon possession count, 1 year on the narcotics possession count, and 4¹/2 to 9 years on the sale count, the latter to be served consecutive to the concurrent terms imposed on the other counts, is affirmed.

1 . There was not even a felony complaint charging the subject offense so as to enable the People to claim that the defendant was being held for indictment (see, People v D’Amico, 76 NY2d 877 [D’Amico v Johnson, 1993 WL 541658 (SD NY, Dec. 23, 1993, Martin, J.) (habeas corpus denied)]).