Opinion
2014-02-27
The PEOPLE of the State of New York, Respondent, v. Tracy BYRDSONG, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rebekah J. Pazmiño of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rebekah J. Pazmiño of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered July 1, 2010, as amended July 23, 2010, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.
Defendant's prosecution by superior court information did not violate the constitutional provision against waiver of indictment by a person charged with “an offense ... punishable by death or life imprisonment” (N.Y. Const., art. I, § 6), even though he ultimately received a life sentence as a persistent violent felony offender ( see People v. Melendez, 210 A.D.2d 74, 620 N.Y.S.2d 946 [1st Dept.1994],lv. denied85 N.Y.2d 940, 627 N.Y.S.2d 1002, 651 N.E.2d 927 [1995];see also People v. Sherman, 221 A.D.2d 813, 634 N.Y.S.2d 231 [3rd Dept.1995],lv. denied87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518 [1996] ). A life sentence is mandatory for a person adjudicated a persistent violent felony offender. Nevertheless, at the time defendant waived indictment, he was not charged with an offense punishable by life imprisonment. He was held on a felony complaint in which the highest charge was robbery in the first degree, a class B felony carrying a maximum sentence of 25 years. A conviction could have become the basis for a life sentence only upon completion of the procedures set forth in CPL article 400. TOM, J.P., FRIEDMAN, SAXE, RICHTER, CLARK, JJ., concur.