Opinion
2014-07-10
The PEOPLE of the State of New York, Respondent, v. Wade McCOMMONS, Appellant.
Robert A. Regan, Glens Falls, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Robert A. Regan, Glens Falls, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and DEVINE, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered December 20, 2011, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
After an incident at the Schenectady County Jail, defendant was charged with assault in the second degree (two counts) and obstructing governmental administration in the second degree. County Court denied his motion to dismiss the indictment and he then pleaded guilty to attempted assault in the second degree in satisfaction of all charges. Defendant now appeals, arguing that his motion to dismiss the indictment should have been granted based on his claim that the People violated CPL 190.50(6) by failing to inform the grand jury of his request that certain witnesses be called.
By his plea of guilty, defendant forfeited this argument. “As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” ( People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] [citations omitted]; accord People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012],lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ). As relevant here, a claim “that the District Attorney did not inform the grand jury of defendant's request to call witnesses to testify on his behalf as required by CPL 190.50(6) ... does not activate a question of jurisdiction or constitute a constitutional defect and, thus, does not survive a guilty plea” ( People v. Moore, 306 A.D.2d 625, 625, 759 N.Y.S.2d 903 [2003] [internal quotation marks and citations omitted]; see People v. Robertson, 279 A.D.2d 711, 712, 718 N.Y.S.2d 463 [2001],lv. denied96 N.Y.2d 805, 726 N.Y.S.2d 383, 750 N.E.2d 85 [2001] ).
We decline to follow the Fourth Department's holding to the contrary in People v. Rigby, 105 A.D.3d 1383, 1383, 963 N.Y.S.2d 492 (2013),lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 (2013). That decision relies upon People v. Hill, 5 N.Y.3d 772, 773, 801 N.Y.S.2d 794, 835 N.E.2d 654 (2005), which involved a dismissal of the indictment prior to a guilty plea or trial based not on the failure to inform the grand jury of the defendant's requested witnesses, but on the prosecutor's “inaccurate and misleading answer to the grand jury's legitimate inquiry” concerning the witnesses requested by the defendant.
PETERS, P.J., EGAN JR., LYNCH and DEVINE, JJ., concur.
ORDERED that the judgment is affirmed.