"[A]nalysis of cases where exceptional circumstances' have been found reveals two common factors: (1) that the delay was due to circumstances beyond the control of the District Attorney's office; and (2) that it prevented the prosecution from being ready for trial" (People v LaBounty, 104 AD2d 202, 204). Here, the failure of the local criminal court to transmit the divestiture documents did not prevent the prosecutor from presenting the case to a grand jury or being ready for trial ( see People v Talham, 41 AD2d 354, 355-356; cf. People v Mickewitz, 210 AD2d 1004, 1004-1005, lv denied 85 NY2d 977; LaBounty, 104 AD2d at 204-205). "The [g]rand [j]ury derives its power from the Constitution and acts of the Legislature, and this power may not be interfered with or infringed upon or in any way curtailed, absent a clear constitutional or legislative expression" ( Talham, 41 AD2d at 355).
nsel” ( People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799,lv. denied7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804,reconsideration denied7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144;seeCPL 390.50[2][a]; see generally People v. Vaughan, 20 A.D.3d 940, 942, 798 N.Y.S.2d 289,lv. denied5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146), and thus it cannot be said that there was no legitimate explanation for defense counsel's alleged deficiency in failing to show it to him ( see generally People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Inasmuch as the local criminal court issued a divestiture order and defendant was held over for grand jury action and executed a waiver of indictment and consent to be prosecuted by a superior court information, we conclude that defendant's further contention that the court had no jurisdiction is without merit ( see People v. Barber, 280 A.D.2d 691, 692, 720 N.Y.S.2d 223,lv. denied96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;People v. Talham, 41 A.D.2d 354, 356, 342 N.Y.S.2d 921). Finally, defendant's contention that he was denied the right to counsel when he waived a preliminary hearing before he was assigned counsel is without merit ( see People v. Kelone, 292 A.D.2d 640, 641, 740 N.Y.S.2d 462,lv. denied98 N.Y.2d 677, 746 N.Y.S.2d 466, 774 N.E.2d 231). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
While it is undisputed here that the local criminal court never issued an order holding defendant over for action by the Grand Jury or transmitted such an order to County Court with the required documentation, although required by CPL 180.30 (1) and 180.70 (1), such noncompliance is not a jurisdictional defect requiring nullification of defendant's waiver or plea (see, People v. Talham, 41 A.D.2d 354, 356). Moreover, defendant — in seeking to nullify his waiver of indictment — cannot simply rely on a void in the record to prove that he was not held for action of the Grand Jury as required by CPL 195.
Judgment unanimously affirmed. Memorandum: We affirm defendant's sentencing as a second felony offender for reasons stated in the decision at Genesee County Court, Morton, J. (see, People v Talham, 41 A.D.2d 354; see also, People v Burdick, 112 Misc.2d 997). We have reviewed defendant's sentence and find it to be neither harsh nor excessive.
Such a result would impermissibly tread upon the function and province of the second Grand Jury, whose failure to vote a true bill on any of the submitted charges was a complete rejection of the People's evidence. Absent a clear constitutional or legislative expression, such as that exemplified by CPL 190.75 (3) (authorizing the resubmission of charges which have been dismissed by a Grand Jury), the power of the Grand Jury to decisively abort criminal proceedings against an individual may not be infringed upon or in any way curtailed (see generally, People v Talham, 41 A.D.2d 354, 355; see also, People v Ryback, 3 N.Y.2d 467; People v Stern, 3 N.Y.2d 658). Accordingly, under the circumstances presented herein, we hold that the second Grand Jury's action effectively nullified the action of the first Grand Jury, rendering the original indictment invalid and thereby creating a "legal impediment" to the conviction of the defendant for the offenses charged (CPL 210.20 [h]).
A defendant is not entitled to notice of a contemplated or pending Grand Jury proceeding unless he has been arraigned in a local criminal court upon a felony complaint which has not been disposed of in the local court (CPL 190.50 [a]). Here, defendant was not entitled to notice because the felony complaint was disposed of in the local criminal court when defendant waived a preliminary hearing (see, People v Otello, 48 A.D.2d 169, 170; People v Talham, 41 A.D.2d 354, 356). Moreover, when notice is required to be given, that notice need not inform the defendant of all of the possible charges that the Grand Jury is likely to consider.
Ordered that the order is reversed, on the law, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings. Contrary to the court's conclusion, since the defendant had been held for the action of the Grand Jury and since he was, therefore, no longer the subject of an undisposed of felony complaint in a local criminal court, the District Attorney was under no affirmative obligation to notify the defendant of prospective or pending Grand Jury proceedings (see, People v Green, 110 A.D.2d 1035; People v Washington, 42 A.D.2d 677; People v Talham, 41 A.D.2d 354; People v Lunney, 84 Misc.2d 1090). Accordingly, it was error to dismiss the indictment on the ground that the notification requirements of CPL 190.50 (5) (a) were violated. Mangano, J.P., Brown, Eiber and Harwood, JJ., concur.
The classification of cocaine as a narcotic drug rests entirely within the province of the Legislature and does not come within the ambit of our authority (see People v Portanova, 56 A.D.2d 265, 277). Without a showing of irrationality, we are unable to overturn the classification scheme. Defendants also argue that they were denied their rights to a prompt preliminary hearing (CPL 180.10, subd 2) and to appear before the Grand Jury (CPL 190.50, subd 5, par [a]). It is apparent even under the procedural scheme adopted by the Legislature in 1970 (L 1970, ch 996) that a defendant may be indicted while awaiting disposition of a felony complaint in a local criminal court (CPL 190.50, subd 5, par [a]; People v Talham, 41 A.D.2d 354), thus obviating any need for a preliminary hearing. Defendants were processed "promptly" as the indictment came down nine days after arrest.
The submission of a case to a grand jury without notice has been upheld where two felony complaints against a defendant had previously been dismissed after a preliminary hearing in a local criminal court (People v Washington, 42 A.D.2d 677) and where a defendant has been bound over for the action of a grand jury at the conclusion of a preliminary hearing in a local criminal court (People v Monroe, 74 Misc.2d 292). This court has held that the proceeding in the lower criminal court was disposed of when the defendant, as in this case, had waived her right to a preliminary hearing. "A felony complaint commences a felony action in a local criminal court and * * * is disposed of by that court * * * (1) by a holding of the defendant for the action of the grand jury" (People v Talham, 41 A.D.2d 354, 356, citing Practice Commentary by Richard G. Denzer, McKinney's Cons. Laws of N.Y., Book 11A, art 180, p 58). In People v Napoli ( 67 Misc.2d 1010), the court held that in the case of a defendant who had waived a preliminary hearing there was no requirement that defendant be notified of a prospective or pending grand jury proceeding.
Failure of town justice in transmitting order, felony complaint, supporting deposition or other pertinent documents to county court did not preclude grand jury from indicting defendant. See People v. Talham (3rd Dept.) 41 A.D.2d 354, 342 N.Y.S.2d 921.--------