Opinion
2004-677 K CR.
Decided December 2, 2005.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (James M. Burke, J.), rendered April 22, 2004. The judgment convicted defendant, after a nonjury trial, of menacing in the third degree and harassment in the second degree.
Judgment of conviction affirmed.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
Although defendant contends on appeal that the prosecutor's reduction of the charge of menacing in the second degree (Penal Law § 120.14), a class A misdemeanor, to menacing in the third degree (Penal Law § 120.15), a class B misdemeanor, immediately prior to trial, deprived him of his right to a jury trial (CPL 340.40), nowhere in the record did defense counsel object to the reduction of the menacing charge. He therefore failed to preserve this issue for appellate review (CPL 470.05). In any event, said reduction was not, in and of itself, prejudicial to the defendant ( see People v. Williams, NYLJ, Mar. 25, 1975 [App Term, 2d 11th Jud Dists]; see also People v. Burke, 186 Misc 2d 278 [Crim Ct, Kings County 2000]; People v. Byrd, 124 Misc 2d 987 [Crim Ct, Kings County 1984]; cf. People v. Potter, 172 Misc 2d 409 [Crim Ct, Bronx County 1997]; People v. Rodriguez, 124 Misc 2d 393 [Crim Ct, Bronx County 1984]).
Defendant's contention that he received ineffective assistance of counsel is based upon matters dehors the record which are not reviewable on direct appeal ( see People v. Ault, 308 AD2d 594).
Pesce, P.J., and Belen, J., concur.
Golia, J., concurs in a separate memorandum.
Although I concur in the decision and the holding, I feel obligated to amplify and distinguish the majority's cited case of People v. Rodriguez ( 124 Misc 2d 393) which is a decision that I wrote some 20-plus years ago.
In the case at bar, the defendant was charged with a class A misdemeanor which is punishable by up to one year of incarceration. During the course of pre-trial plea negotiations, the defendant was offered an adjournment in contemplation of dismissal (ACD) and a full order of protection. This offer was rejected by the defendant. Just prior to trial, the prosecutor moved to reduce the charge to a class B misdemeanor which had the effect of depriving the defendant of a jury trial.
Criminal Procedure Law effectively requires that a trial by jury be available to any defendant who has entered a plea of not guilty to an information which contains a class A Misdemeanor except "that in the New York city criminal court, the trial of an information which charges a misdemeanor for which the authorized term of imprisonment is not more than six months must be a single judge trial" (CPL 340.40). Penal Law § 70.15 (2) sets the minimum term of imprisonment for all class B misdemeanors as three months. The practical effect of reducing an information that contains a class A misdemeanor to an information that only charges a class B misdemeanor or lesser charges is to remove the availability of a jury trial.
Inasmuch as the defendant did not object to the reduction of the charges at the time of trial, he did not preserve the issue of the propriety of such reduction for appeal.
I therefore agree with the majority that this is not preserved for appellate review. However, they then state that "In any event, said reduction was not, in and of itself, prejudicial to the defendant" and cite, among others, to the Rodriguez matter. However, in that case the accusatory instrument was dismissed upon a finding that a similar reduction of charges from a class A misdemeanor to a class B misdemeanor at the jury trial part call of the calendar was impermissibly prejudicial to the defendant. It was obvious in the Rodriguez case, and is possible in the case at bar, that the reduction of charges was for the sole purpose of eliminating defendant's right to a trial by jury. In Rodriguez, I found this to be impermissible prosecutorial vindictiveness and a clear abuse of otherwise proper prosecutorial discretion. If this defendant had preserved that issue for appeal below, there is a likelihood that the within case could call for a conclusion similar to Rodriguez.