People v. Perez

2018 NY Slip Op 8547

Opinion

People v Perez (2018 NY Slip Op 08547)

People v Perez

2018 NY Slip Op 08547

Decided on December 13, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2018
Friedman, J.P., Gische, Kapnick, Kahn, Kern, JJ.

7866 1463/14

[*1]The People of the State of New York, Respondent,

v

Rafael Perez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John W. Carter, J. at motion to dismiss; Ralph Fabrizio, J. at plea and sentencing), rendered September 8, 2015, as amended September 24, 2015, convicting defendant of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.

Under the circumstances of the case, the indictment under which defendant pleaded guilty was defective because the People failed to seek judicial permission before re-presenting the case to another grand jury (see CPL 190.75[3]).

Where, as here, an indictment is defective, the judgment must ordinarily be reversed, defendant's plea vacated and the indictment dismissed with leave granted to the People to apply for an order permitting resubmission of the charges to another grand jury. However, defendant requests that the indictment be dismissed with prejudice, and, if that relief is not available, he requests an affirmance. Since we are not prepared to dismiss the indictment with prejudice as requested by defendant, we affirm.

Defendant's other challenge to the indictment is without merit in any event.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2018

CLERK