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1 No. 275 [1996 NY Int. 261]
Decided December 20, 1996
John Gemmill, for appellant.
Gary Casimir, for respondent.
MEMORANDUM:
The order of
the Appellate Division should be modified by vacating defendant's plea
to the offense of criminal sale of a controlled substance in the third
degree and the case remitted to Supreme Court for further proceedings on
Indictment No. 2545/91 and, as so modified, affirmed. After being convicted
of two counts of attempted aggravated assault and other crimes under one
indictment, defendant pleaded guilty to criminal sale of a controlled substance
in the third degree, in complete satisfaction of two counts of criminal
possession of a controlled substance in the third and fifth degrees charged
in a second completely unrelated indictment.
The Appellate
Division unanimously affirmed defendant's conviction under the first indictment.
That Court also affirmed his conviction under the second indictment, with
two Justices dissenting on the basis that the trial court lacked jurisdiction
to accept his guilty plea to an offense not charged in the second indictment
and which was not a lesser included offense or an offense of lesser degree
or grade than the charged counts contained therein (__AD2d__). A
Justice of the Appellate Division granted defendant leave to appeal.
The plea colloquy
leading to defendant's conviction for criminal sale of a controlled substance
did not disclose any apparent factual relationship between the criminal
sale plea and
the criminal possession counts charged in the second indictment, other
than the common date of the offenses and that the substance in all offenses
was cocaine.
The provisions of
Criminal Procedure Law article 220 govern the acceptance of guilty pleas
under indictments and, in some respects, are jurisdictional in nature because
of
constitutional implications (see, NY Const, art I, 6). Section
220.10 provides that "[t]he only kinds of pleas which may be entered to
an indictment are those specified in this section"
(CPL 220.10 [emphasis supplied]). Except in circumstances not
relevant here, where the indictment charges two or more offenses in separate
counts, a defendant may enter a plea of guilty to one or more of the offenses
charged and/or lesser included offenses thereof (CPL 220.10[4]).
For plea purposes
only, lesser included offenses include not only those qualifying as such
under the general statutory definition of lesser included crimes (CPL 1.20[37]),
but also the specifically enumerated extensions of the lesser included
offense concept, set forth in CPL 220.20(1)(a)-(k). In this respect,
the Criminal Procedure Law has imposed stricter
criteria on plea bargains for lesser offenses, than its predecessor
statute (see, former Code of Criminal Procedure 342-a; People v O'Connor,
14 NY2d 62; People v Griffin, 7 NY2d
511).
Criminal sale
of a controlled substance in the third degree is not a lesser included
offense of criminal possession under the general definition (see, CPL 1.20[37]),
and it is
omitted from the classes of crimes deemed to be lesser included offenses
of criminal possession for plea purposes (see, CPL 220.20[1][i]).
Thus, defendant's plea conflicted with the
express plea constraints set forth in CPL 220.10. We have sanctioned
two narrow exceptions to the present statutory guilty plea restrictions
of CPL article 220, in reliance upon precedent decided under the former
Code of Criminal Procedure. Following People v Foster (19 NY2d 150),
we have approved of a plea to the technically nonexistent crime of an attempt
to commit a specific crime which, by definition, is committed without intent,
but which otherwise would have been a lesser included offense as an attempt
under the general definition of CPL 1.20(37) (see, People v Martinez, 81
NY2d 810 [plea to attempted manslaughter in the first degree]). Also
following People v Foster (supra), we have approved of a plea to
a lesser crime technically inconsistent with the crime charged, albeit
sharing common elements and involving the same victim (see, People v Adams,
57 NY2d 1038 [plea to manslaughter
first-degree in satisfaction of a felony murder count involving the
same victim, following the defendant's conviction for the underlying felony]).
These narrow exceptions are not out of
harmony with the statutory rationale limiting guilty pleas to actual
lesser included offenses, or to crimes akin to such lesser included offenses.
They should not be extended, as would be so in the instant case, to a plea
to a crime not only of equal or higher grade or degree to the crimes charged,
but a plea to a crime of which the crimes charged are statutory lesser
included offenses for plea purposes (see, CPL 220.20[1][h]), in direct
contradistinction to the procedural rationale of Criminal Procedure Law
article 220. A different result would undermine the legislative policy
of article 220 to place limitations on plea bargains deviating from the
crimes charged.
* * * * * * * * * * * * * * * *
Order modified and case remitted to Supreme Court, Bronx County, for
further proceedings in accordance with the memorandum herein and, as so
modified, affirmed. Chief Judge Kaye and Judges Simons, Titone, Bellacosa,
Smith, Levine and Ciparick concur.
Decided December 20, 1996