People v. Alfano

75 A.D.2d 584, 426 N.Y.S.2d 572, 1980 N.Y. App. Div. LEXIS 11011

Opinion

Appeal by defendant from a judgment of the County Court, Orange County, rendered May 3, 1979, convicting him of criminal sale of a controlled substance in the third degree, upon a plea of guilty, and imposing sentence. Judgment affirmed. Defendant contends that, inasmuch as he waived his right to be prosecuted by indictment and pleaded guilty to a superior court information charging him with criminal sale of a controlled substance in the third degree, the subsequent indictment, count one of which alleges the same crime, placed him in double jeopardy. Defendant has misapprehended his right to waive prosecution by indictment of a (then) class A felony. He may not waive that right (see CPL 195.10, subd 1, par [b]). The plea to the information was therefore a nullity and jeopardy did not attach (see CPL 40.30; Downum v United States, 372 US 734). The letter to defendant’s lawyer dated November 21, 1978 satisfied the obligation of the People to notify the defendant of the Grand Jury proceeding (see CPL 190.50, subd 5, par [a]). Furthermore, as the People note, if defendant felt aggrieved because of lack of notice, there was opportunity to move to dismiss the indictment on that ground following his arraignment upon the indictment (see CPL 190.50, subd 5, par [c]). Rabin, J. P., Margett, Martuscello and Weinstein, JJ., concur.