People
v.
Frasier

Supreme Court, Appellate Division, Third Department, New York.Apr 4, 2013
962 N.Y.S.2d 787 (N.Y. App. Div. 2013)
962 N.Y.S.2d 787105 A.D.3d 10792013 N.Y. Slip Op. 2289

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2013-04-4

The PEOPLE of the State of New York, Respondent, v. Ronald FRASIER, Appellant.

Matthew J. Leonardo, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.



Matthew J. Leonardo, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and GARRY, JJ.

McCARTHY, J.


Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered September 8, 2010, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

During an altercation at a night club, defendant and his codefendant brother allegedly shot two victims, killing one and injuring the other. In connection with this incident, defendant was charged by indictment with murder in the second degree, assault in the first degree (three counts), attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree. The indictment additionally charged him with criminal possession of a weapon in the second degree (three counts) and criminal possession of a weapon in the third degree (four counts) in connection with several other incidents. After a week of trial, defendant pleaded guilty to murder in the second degree in satisfaction of all of the charges. County Court imposed the agreed-upon prison sentence of 18 years to life. Defendant appeals.

Defendant's brother pleaded guilty to murder in the second degree and assault in the first degree ( People v. Fraiser, 90 A.D.3d 1082, 933 N.Y.S.2d 625 [2011],lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ).

Once the indictment was returned, defendant's habeus corpus petition, seeking his release pursuant to CPL 190.80, was rendered moot and the exception to the mootness doctrine does not apply ( see People v. Bellamy, 85 A.D.3d 1395, 1396, 925 N.Y.S.2d 701 [2011];People v. Phillips, 277 A.D.2d 816, 819, 715 N.Y.S.2d 793 [2000],lv. denied 96 N.Y.2d 804, 726 N.Y.S.2d 382, 750 N.E.2d 84 [2001] ). Thus, we will not address County Court's handling of that petition.

After reviewing County Court's oral discussion of defendant's waiver of the right to appeal and the executed written waiver, we conclude that defendant validly waived his right to appeal ( see People v. White, 96 A.D.3d 1299, 1299–1300, 946 N.Y.S.2d 717 [2012],lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012];People v. Clemons, 96 A.D.3d 1086, 1087, 945 N.Y.S.2d 492 [2012],lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ). A valid waiver precludes arguments concerning rulings on technical or evidentiary matters, but claims survive the waiver if the alleged defects are jurisdictional or of a constitutional nature that go to the heart of the process ( see People v. Maye, 69 A.D.3d 1115, 1116, 893 N.Y.S.2d 375 [2010],lv. denied15 N.Y.3d 807, 908 N.Y.S.2d 167, 934 N.E.2d 901 [2010] ). Among the arguments foreclosed by defendant's waiver are his assertions that County Court erred in its decision following the Wade hearing and in precluding his alibi defense ( see People v. Lewis, 95 A.D.3d 1442, 1443, 944 N.Y.S.2d 388 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012];People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011],lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ).

Assuming, without deciding the question, that part of defendant's argument concerning the presentment to the grand jury raises an issue of a jurisdictional or constitutional nature, the argument is unavailing on the merits. Defendant asserts that the People improperly represented charges to a grand jury without court permission. If a grand jury votes to dismiss a proposed charge, the court may allow the People to resubmit the charges to the same or another grand jury ( seeCPL 190.75[1], [3] ). If the grand jury initially votes favorably on a charge, however, the statute does not impose the same limits on the People. In that situation, the People may, without court approval, resubmit the charge to the same grand jury with additional evidence on that charge or with additional proposed charges, or resubmit it to another grand jury and seek to obtain a superceding indictment ( see People v. Cade, 74 N.Y.2d 410, 414–415, 548 N.Y.S.2d 137, 547 N.E.2d 339 [1989] ). The grand jury minutes here reveal that the grand jury voted a true bill on the murder count but, before the indictment was filed with the court, the People presented additional evidence and numerous other proposed charges to the same grand jury, which then voted favorably on multiple charges as reflected in the indictment at issue. As there was no dismissal or withdrawal of charges, there was no second presentment of charges and the People were not required to obtain court permission to present additional evidence and proposed charges ( see id.). Thus, County Court correctly denied the portion of defendant's motion seeking dismissal of the indictment on that basis.

Defendant's remaining contentions, to the extent that they are not precluded by his guilty plea or valid waiver of appeal, are without merit.

ORDERED that the judgment is affirmed.

MERCURE, J.P., SPAIN and GARRY, JJ., concur.