The People, Respondent,v.Steven Myers, Appellant.

Brief

N.Y.June 6, 2018

To be argued by: Estimated time: John A. Cirando, Esq. 15 minutes Syracuse, New York APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. __________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 __________________________ ____________________________________________________________________________________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................ 1 POINT I..................................................................................................................... 2 APPELLANT’S WAIVER OF INDICTMENT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. POINT II ................................................................................................................... 6 APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO APPEAL. CONCLUSION ......................................................................................................... 7 THE JUDGMENT OF CONVICTION SHOULD BE UNANIMOUSLY REVERSED. CERTIFICATE OF COMPLIANCE .................................................................... 8 ii TABLE OF AUTHORITIES Cases People v. Banville, 134 A.D.2d 116, 122 [2nd Dept. 1988] ....................................... 3 People v. Boston, 75 N.Y.2d 585, 589 [1990] ........................................................... 3 People v. Callahan, 80 N.Y.2d 273, 283 ..................................................................... 6 People v. Lopez, 6 N.Y.3d 248, 257 [2006] .............................................................. 6 People v. Page, 88 N.Y.2d 1, 6 [1996] ...................................................................... 4 People v. Pelchat, 62 N.Y.2d 97, 104 [1984] ............................................................ 4 People v. Waid, 26 A.D.3d 734, 735 [4th Dept. 2006] ............................................... 4 Statutes Criminal Procedure Law § 195.20 .................................................................... 3, 5, 6 Criminal Procedure Law § 195.30 .........................................................................3, 4 Criminal Procedure Law § 320.10 ............................................................................. 4 Other Authorities Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A .......... 4 Constitutional Provisions New York Constitution Art. I, § 2 ............................................................................. 4 APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. __________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 __________________________ THE DEFENDANT/APPELLANT’S REPLY BRIEF PRELIMINARY STATEMENT This Brief is submitted in response to the People's Brief, which was received, by counsel, on December 21, 2017. 2 POINT I APPELLANT’S WAIVER OF INDICTMENT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. The People assert (see The People’s Brief, pp. 16-20) that any challenge to the sufficiency of the waiver of Indictment allocution is a non-jurisdictional claim that is unpreserved, and is forfeited by appellant’s plea of guilty. It is respectfully submitted, however, that the claims set forth in the instant appeal are properly before this Court. Initially, it must be stressed that the Appellate Division, Fourth Department correctly stated in their Memorandum and Order that “[appellant] was not required to preserve for our review his challenge to the validity of the waiver of indictment” (4). The People never sought leave to appeal such determination. Further, although the People attempt to characterize appellant’s challenge to the waiver of Indictment as non-jurisdictional (see The People’s Brief, p. 16), it is instead a jurisdictional challenge to the sufficiency of the waiver of Indictment, claiming that such waiver did not met the constitutional and statutory requirement of being knowingly, intelligently, and voluntarily entered. As such, appellant’s claims are properly before this Court. On the merits, the People (see The People’s Brief, pp. 10-11) claim that appellant’s waiver of Indictment met constitutional and statutory requirements, and 3 was thus valid. It is respectfully submitted, however, that under New York Constitution Article I, § 6, and Criminal Procedure Law Article 195 appellant’s waiver of Indictment must be knowingly, intelligently, and voluntarily entered in order to be valid. Initially, as stressed in Appellant’s Brief (see Appellant’s Brief, pp. 10-13), the history of New York Constitution Article I, § 6 paired with Criminal Procedure Law Article 195, indicates that a defendant’s waiver of Indictment must be knowingly, intelligently, and voluntarily entered in order to be valid. Specifically, given the statute’s requirement that the waiver of Indictment: be evidenced in writing; be signed by the defendant, in open court, in the presence of his attorney; be endorsed by the district attorney; be approved by the trial court; and contain a statement by the defendant that he is aware that he has the right to be prosecuted by an Indictment filed by a Grand Jury, and that he waives such right, demonstrates the Legislature’s desire to balance the procedural protections of a Grand Jury Indictment, while also providing a mechanism for speedier disposition (Criminal Procedure Law §§ 195.20, 195.30; People v. Boston, 75 N.Y.2d 585, 589 [1990]; People v. Banville, 134 A.D.2d 116, 122 [2nd Dept. 1988]). However, such speedier disposition should not diminish the protections afforded a defendant who would have otherwise been prosecuted by an Indictment. 4 Moreover, such history is especially convincing when compared to a defendant’s waiver of a trial by jury, who’s constitutional and statutory provisions mirror that of a defendant’s waiver of Indictment (New York Constitution Art. I, § 2; Criminal Procedure Law § 320.10). Additionally, considering the similar procedural protections afforded by a trial by jury and a Grand Jury Indictment, this Court should follow its reasoning in People v. Page (88 N.Y.2d 1, 6 [1996]) and find that the legislative history of New York Constitution Article I, § 6 and Criminal Procedure Law Article 195’s requirement that a defendant execute a signed written waiver in open court, evidences that such a waiver of Indictment must be knowingly, intelligently, and voluntarily entered in order to be valid People v. Pelchat, 62 N.Y.2d 97, 104 [1984]; Page, 88 N.Y.2d at 6). The People further assert (see The People’s Brief, pp. 13-16) that appellant’s waiver of Indictment complied with Criminal Procedure Law Article 195, and that absent any proof to the contrary, this Court should presume that appellant’s waiver of Indictment met the necessary statutory requirements that it be signed in open court. Additionally, relying on People v. Waid (26 A.D.3d 734, 735 [4th Dept. 2006]) and McKinney’s Practice Commentaries (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, Criminal Procedure Law § 195.30), the People claim (see The People’s Brief, pp. 13-16) that because appellant’s waiver of Indictment met all statutory requirements, the trial court 5 lacked discretion to withhold approval of the waiver. It is respectfully submitted that such a position fails to take into consideration whether or not the defendant understands the nature of the proceedings, and whether or not he/she knowingly consents to that procedure. It should be noted that appellant’s waiver of Indictment did not meet the requirements of Criminal Procedure Law § 195.20. Although there is a presumption of regularity that attaches to judicial proceedings, there was no colloquy to confirm that appellant signed the Waiver of Indictment Form in open court (16-17). The People boldly assume (see The People’s Brief, p. 14), without citing to the Record, that when appellant remained at the lectern the trial court assured that appellant signed the waiver of Indictment Form in open court. While the Order Approving Waiver of Indictment states that appellant “executed a waiver of his right to be prosecuted by indictment...in open court in the presence of his attorney”, the disparity between such language and the transcript of the proceedings of July 9, 2012, indicate that the Order Approving appellant’s Waiver of Indictment was merely a “rubber stamp” (14). Further, similar to the waiver of the right to appeal, this Court should find that a Form, on its own, is not sufficient, and must be used in conjunction with an oral confirmation that the defendant grasps the nature of the rights he is foregoing 6 (People v. Lopez, 6 N.Y.3d 248, 257 [2006]). As such, this Court should find that appellant’s waiver of Indictment is invalid. Therefore, it is respectfully submitted that appellant’s waiver of Indictment did not meet constitutional and statutory requirements, and as such, the Appellate Division’s determination should be vacated, and the matter remitted for further proceedings (11-13, 16-17) (Criminal Procedure Law § 195.20). POINT II APPELLANT DID NOT VALIDLY WAIVE HIS RIGHT TO APPEAL. The People concede (see The People’s Brief, pp. 20-21) that the waiver of the right to appeal was invalid because appellant’s written waiver was not accompanied with a colloquy of the waiver on the Record (People v. Callahan, 80 N.Y.2d 273, 283). 7 CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE UNANIMOUSLY REVERSED. Respectfully submitted, /s/JOHN A. CIRANDO D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel Dated: January 10, 2018 8 APL-2017-00157 STATE OF NEW YORK COURT OF APPEALS ________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against STEVEN MYERS, Defendant/Appellant. __________________________ Onondaga County SCI No. I-2012-0715-1 Appellate Division Docket No. KA-14-01826 __________________________ CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §500.1 of the Court of Appeals the undersigned counsel hereby certifies that this Brief was prepared on a computer in 14-point Times New Roman font, double spaced, with a word count of 1,042, as measured by the word-processing system used to prepare this Brief. Dated: January 10, 2018 /s/JOHN A. CIRANDO D.J. & J.A. CIRANDO, ESQS. Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285