Summary
In Catterson, the defendant entered a guilty plea to a class B felony as defined by Penal Law article 130, committed or attempted to be committed against a person under age 18.
Summary of this case from People v. HinspeterOpinion
2001-09126
Argued December 13, 2001.
December 17, 2001.
Proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus to compel the respondent Louis J. Ohlig, a Justice of the County Court, Suffolk County, to comply with the provisions of CPL 530.40(3) in a criminal proceeding entitled People v. Charles Carlson, pending under Suffolk County Indictment No. 710-01, and immediately commit or remand the respondent Charles Carlson to the custody of the sheriff upon his plea of guilty, entered October 11, 2001, to course of sexual conduct against a child in the first degree under Penal Law § 130.75, and course of sexual conduct against a child in the second degree under Penal Law § 130.80.
James M. Catterson, Jr., District Attorney, Riverhead, N Y (Steven A. Hovani of counsel), petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (Lisa E. Fleischmann of counsel), for respondent Louis J. Ohlig.
Reynolds, Caronia, Gianelli Hagney, Hauppauge, N.Y. (Paul Gianelli of counsel), for respondent Charles Carlson.
Before: GLORIA GOLDSTEIN, J.P., ANITA R. FLORIO, LEO F. McGINITY, HOWARD MILLER, JJ.
Upon the papers filed in support of the petition and the papers filed in opposition thereto, it is
ADJUDGED that the petition is granted, on the law, without costs or disbursements, the respondent Louis J. Ohlig is directed to comply with the provisions of CPL 530.40(3) in a criminal proceeding entitled People v. Charles Carlson, under Suffolk County Indictment No. 710-01, and immediately commit or remand the respondent Charles Carlson to the custody of the sheriff.
In the underlying criminal proceeding, the respondent Charles Carlson pleaded guilty on October 11, 2001, to the crimes of course of sexual conduct against a child in the first degree under Penal Law § 130.75, a class B felony, and course of sexual conduct against a child in the second degree under Penal Law § 130.80, a class D felony. Although it is undisputed that Carlson's plea of guilty was voluntary, knowing, and intelligent, the respondent
Justice deferred formal acceptance of the plea until January 3, 2002, to allow Carlson to remain at liberty until after the year-end holidays.
The amended version of CPL 530.40(3), which took effect February 1, 2001, provides, in relevant part, that "a superior court may not order recognizance or bail, or permit a defendant to remain at liberty pursuant to an existing order, after he [or she] has been convicted of either: (a) a class A felony or (b) any class B or class C felony defined in [Penal Law § 130] committed or attempted to be committed against a person less than eighteen years of age. In either case the court must commit or remand the defendant to the custody of the sheriff". The term "conviction" is defined as "the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20).
The record reveals that Carlson entered a valid and enforceable plea, at the time of the allocution (see, People v. D'Amico, 147 Misc.2d 731, affd 179 A.D.2d 671), to a class B felony which was committed or attempted to be committed against a person less than 18 years of age. Therefore, the respondent Justice had no authority to circumvent the automatic remand provisions of CPL 530.40(3).
GOLDSTEIN, J.P., FLORIO, McGINITY and H. MILLER, JJ., concur.