People v. Coxon

Appellate Division of the Supreme Court of New York

People v. Coxon

130 A.D.3d 1098, 12 N.Y.S.3d 387

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 2015

Docket106660

StatusPublished

Cited by1 cases

This text of 130 A.D.3d 1098 (People v. Coxon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Coxon, 130 A.D.3d 1098, 12 N.Y.S.3d 387 (N.Y. Ct. App. 2015).

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Opinion

Devine, J.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered November 12, 2013, convicting defendant upon his plea of guilty of the crime of failure to register as a sex offender.

After defendant neglected to register his change of address within 10 days of moving, he was charged in a felony complaint with failure to register as a sex offender. Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with failure to register as a sex offender and waived his right to appeal. County Court agreed to sentence defendant to no more than one year in jail, but warned him that a greater sentence was possible if he failed to appear for sentencing. Thereafter, defendant failed to appear for sentencing, prompting County *1099 Court to sentence defendant in abstentia to a prison term of 1 to 3 years. Defendant appeals.

We are unpersuaded by defendant’s contention that County Court did not acquire jurisdiction to conduct the plea hearing. Although defendant points to the fact that the record does not indicate, among other things, that the matter was held over for grand jury action, “the transfer of [his] case to County Court is evidence that he was held by a local criminal court for grand jury action, and a mere void in the record is insufficient to establish his claim” that the statutory requirements were not met (People v Simmons, 110 AD3d 1371, 1372 [2013] [internal quotation marks and citation omitted]). Additionally, the record establishes that defendant not only waived a preliminary hearing, but signed a waiver of indictment in open court, which was consented to by the People, whereupon County Court executed an order approving waiver of indictment. Given the presumption of regularity accorded to judicial proceedings and the lack of any evidence by defendant to rebut that presumption, we find the waiver of indictment to be valid (see People v Simmons, 110 AD3d at 1372-1373; People v Hauenstein, 106 AD3d 1339, 1339-1340 [2013], lv denied 21 NY3d 1042 [2013]).

Defendant’s contention that the enhanced sentence is harsh and excessive is not barred under the terms of his appeal waiver; nevertheless, we find it to be without merit.

Garry, J.P., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.

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Devine, J.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered November 12, 2013, convicting defendant upon his plea of guilty of the crime of failure to register as a sex offender.

After defendant neglected to register his change of address within 10 days of moving, he was charged in a felony complaint with failure to register as a sex offender. Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with failure to register as a sex offender and waived his right to appeal. County Court agreed to sentence defendant to no more than one year in jail, but warned him that a greater sentence was possible if he failed to appear for sentencing. Thereafter, defendant failed to appear for sentencing, prompting County *1099 Court to sentence defendant in abstentia to a prison term of 1 to 3 years. Defendant appeals.

We are unpersuaded by defendant’s contention that County Court did not acquire jurisdiction to conduct the plea hearing. Although defendant points to the fact that the record does not indicate, among other things, that the matter was held over for grand jury action, “the transfer of [his] case to County Court is evidence that he was held by a local criminal court for grand jury action, and a mere void in the record is insufficient to establish his claim” that the statutory requirements were not met (People v Simmons, 110 AD3d 1371, 1372 [2013] [internal quotation marks and citation omitted]). Additionally, the record establishes that defendant not only waived a preliminary hearing, but signed a waiver of indictment in open court, which was consented to by the People, whereupon County Court executed an order approving waiver of indictment. Given the presumption of regularity accorded to judicial proceedings and the lack of any evidence by defendant to rebut that presumption, we find the waiver of indictment to be valid (see People v Simmons, 110 AD3d at 1372-1373; People v Hauenstein, 106 AD3d 1339, 1339-1340 [2013], lv denied 21 NY3d 1042 [2013]).

Defendant’s contention that the enhanced sentence is harsh and excessive is not barred under the terms of his appeal waiver; nevertheless, we find it to be without merit.

Garry, J.P., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.

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Bluebook (online)

130 A.D.3d 1098, 12 N.Y.S.3d 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-coxon-nyappdiv-2015.

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