Summary
In Catnott, the defendant waived indictment with respect to additional charges connected with an indictment charging him with Criminal Possession of a Controlled Substance in the Fifth Degree, waived his right to appeal and pleaded guilty to an SCI charging him with Criminal Possession of a Controlled Substance in the Third Degree. Pursuant to a plea agreement, the indictment was dismissed and defendant was sentenced to 3½ years in prison and 2 years post release supervision.
Summary of this case from People v. ThebodeauOpinion
2012-02-2
The PEOPLE of the State of New York, Respondent, v. Antoine CATNOTT, Appellant.
David E. Woodin, Catskill, for appellant. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
David E. Woodin, Catskill, for appellant. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: MERCURE, Acting P.J., ROSE, SPAIN, MALONE JR. and McCARTHY, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 17, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Felony complaints were filed against defendant charging him with criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree. Subsequently, a grand jury handed down an indictment charging defendant with criminal possession of a controlled substance in the fifth degree. The People indicated that they were going to be submitting additional charges to the grand jury upon receipt of weight analysis information from the State Police lab. Pursuant to a plea agreement, defendant waived indictment with respect to the additional charges, waived his right to appeal and pleaded guilty to a superior court information charging him with criminal possession of a controlled substance in the third degree. In accordance with the plea agreement, the indicted charge was dismissed and defendant was sentenced to 3 1/2 years in prison and two years of postrelease supervision. Defendant now appeals.
We note that defendant was initially sentenced to three years of postrelease supervision. However, this period was reduced to the legally authorized period of two years upon defendant's motion ( see Penal Law § 70.45[2][b] ).
We find merit to defendant's argument that his waiver of indictment was not valid. While the record does reflect that defendant executed the written waiver of indictment on September 15, 2010, it is also clear from the record that he did not do so in open court on that date. The People argue in response that the written waiver was misdated, and that it was actually executed in open court on September 17, 2010. Nothing in the transcript of defendant's appearance on that date, however, supports the People's contention. Thus, the record does not reflect that defendant's written waiver complies with CPL 195.20, as is strictly and unequivocally required ( see People v. Donnelly, 23 A.D.3d 921, 921–922, 804 N.Y.S.2d 459 [2005]; compare People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011]; People v. Sabin, 73 A.D.3d 1390, 1391, 905 N.Y.S.2d 282 [2010], lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010]; People v. Wicks, 42 A.D.3d 585, 585, 838 N.Y.S.2d 267 [2007] ). Accordingly, defendant's plea must be vacated.
ORDERED that the judgment is reversed, on the law, plea vacated, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision.