Local court errors may be unreviewable on appeal
by Gary Muldoon
Muldoon & Getz
Rochester, New York
After conviction in superior court, the defense may wish to raise on appeal errors that occurred before indictment. Often these errors, while serious, are not reviewable on appeal. These include:
• defective felony complaint. People v Black, 270 AD2d 563 (3d Dept 2000).
• not holding a preliminary hearing. People v Kirk, 96 AD3d 1354 (4th Dept 2012); People v Lewis, 93 AD3d 1264 (4th Dept 2012); People v Damphier, 51 AD3d 1146 (3d Dept 2008); People ex rel Hirschberg v Close, 1 NY2d 258 (1956); see also, Vega v Bell, 47 NY2d 543 (1979) (Juvenile Offender proceeding, failure to hold removal hearing). Cf. People v Hodge, 53 NY2d 313 (1981). The remedy for not timely holding a preliminary hearing is defendant’s release while the charge is pending, rather than dismissal after conviction. People v Bensching, 117 AD2d 971 (4th Dept 1986).
• sufficiency of the evidence at the preliminary hearing. See People v Greene, 139 AD2d 763 (2d Dept 1988).
• whether pretrial bail was excessive. People v Smart, 224 AD2d 999 (4th Dept 1996).
After grand jury action, other procedural irregularities, such as arraignment on the indictment, may not require appellate review. People v Meachem, 50 AD2d 953 (3d Dept 1975); see also, People v Rodabaugh, 26 AD3d 598 (3d Dept 2006); People v Golston, 13 AD3d 807 (3d Dept 2004).
Effect of guilty plea
Additionally, a guilty plea waives many issues. Not always, though. In one appeal, the defendant challenged the limitations on forms of bail, but had pleaded guilty. Normally this error would not result in reversal, but this was a situation that was capable of repetition yet evading review. The Court of Appeals vacated the conviction. People ex rel McManus v Horn, 18 NY3d 660 (2012).
Vacatur of guilty plea
And sometimes what happened in local court may have a significant effect on the appellate court. Consider what happened in Syracuse City Court, where a guilty plea was revoked over defendant’s objection.
Defendant was charged by a felony complaint, which the People amended to Criminal Contempt 2nd, a misdemeanor. He pleaded guilty in City Court with a sentence promise of one year. At sentencing, when defendant stated dissatisfaction with his attorney, the judge sua sponte vacated the guilty plea, over defendant’s protest.
Defendant was thereafter indicted for and convicted at trial of a felony, Criminal Contempt 1st degree. The local court judge lacked authority to vacate the guilty plea without defendant’s consent. Being tried on the same acts for which he had pleaded guilty violated double jeopardy. On direct appeal, the conviction was reversed and the indictment dismissed, and the case was remanded to City Court to sentence defendant to time served on the vacated judgment. People v Searcy, 2 AD3d 1395 (4th Dept 2003).
© 2012 by Gary Muldoon