Opinion
2006-492 W CR.
Decided November 20, 2008.
Appeal from judgments of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), rendered February 17, 2006. The judgments convicted defendant, upon his pleas of guilty, of resisting arrest and driving while ability impaired.
Judgments of conviction reversed on the law, guilty pleas vacated, felony complaint and simplified traffic informations reinstated and matter remanded to the court below for all further proceedings on the felony complaint and simplified traffic informations.
PRESENT RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Defendant was initially charged in a felony complaint with assault in the second degree (Penal Law § 120.05), criminal possession of a controlled substance (Penal Law § 220.03) and resisting arrest (Penal Law § 205.30). He was also charged in separate simplified traffic informations with violating Vehicle and Traffic Law sections 306 (b), 509 (1), 1111 (1), 1120 (a) and 1192 (4). Pursuant to plea negotiations, the felony charges were purportedly reduced, and defendant then pleaded guilty to driving while ability impaired (Vehicle and Traffic Law § 1192) and resisting arrest (Penal Law § 205.30) in full satisfaction of the charges.
Although defendant and the court orally consented to the reduction of the felony complaint, such a reduction was invalid as not in conformance with CPL 180.50 ( People v Dion, 93 NY2d 893, 894) and this defect is nonwaivable ( see People v Grune, 175 Misc 2d 281 [App Term, 9th 10th Jud Dists 1997]; People v Jones, 151 Misc 2d 582 [App Term, 2d 11th Jud Dists 1991], lv denied 79 NY2d 921; People v Minor, 144 Misc 2d 846 [App Term, 2d 11th Jud Dists 1989], lv denied 74 NY2d 666). Accordingly, the court below was not authorized to accept defendant's plea to the count of resisting arrest, a misdemeanor, which was charged in the felony complaint ( see People v Wiltshire, 23 AD3d 85, 88-89[2005]). Under the circumstances presented, the judgments convicting defendant of resisting arrest and driving while ability impaired are reversed and the felony complaint and all the simplified traffic informations are reinstated.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.