         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
281
KA 09-00436
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY ATTEA, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DOUGLAS A. GOERSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Shirley
Troutman, J.), rendered October 8, 2008. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of criminal possession of stolen property in
the third degree (Penal Law § 165.50). Contrary to defendant’s
contention, the plea was not jurisdictionally defective (cf. People v
Zanghi, 79 NY2d 815). Defendant was arrested for criminal possession
of stolen property in the fourth degree and was issued an appearance
ticket directing him to appear in Buffalo City Court (see CPL 150.20
[2]). A felony complaint was filed in City Court, the appropriate
local court, with respect to that charge (see CPL 150.50 [1]), and a
warrant was issued for defendant’s arrest when he failed to appear
(see CPL 150.60). Defendant was thereafter arrested on an unrelated
charge and was held on the warrant issued on the charge of criminal
possession of stolen property in the fourth degree. The local court
held defendant for the action of a grand jury on that charge (see CPL
180.30 [1]). As part of a plea bargain in County Court that included
defendant’s waiver of the right to appeal and the People’s agreement
not to seek persistent felony offender status, defendant agreed to
waive presentation to the grand jury and to plead guilty to a superior
court information (SCI) charging him with criminal possession of
stolen property in the third degree (see CPL 195.10 [1] [a]).
Inasmuch as defendant was not held for the action of a grand jury on
that offense, the court lacked jurisdiction to accept the plea to a
higher charge (see People v Pierce, 14 NY3d 564, 568-571; Zanghi, 79
NY2d at 817). The People therefore filed a new felony complaint
charging defendant with criminal possession of stolen property in the
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                                                         KA 09-00436

third degree and requested that County Court exercise its discretion
to sit as a local criminal court to arraign defendant on the new
felony complaint (see CPL 10.20 [3] [a]), and County Court granted
that request.

     We reject defendant’s contention that the court lacked
jurisdiction to accept his plea to the SCI because he had not been
“arrested” prior to his arraignment on the felony complaint charging
him with criminal possession of stolen property in the third degree.
A superior court is mandated to sit as a local court to arraign a
defendant on a felony complaint if the defendant is brought before it
following his or her arrest (see CPL 180.20 [2]); however, we reject
defendant’s contention that the court’s jurisdiction is determined by
whether the defendant was actually arrested on the felony complaint.
Here, we conclude that the court properly exercised its discretion
pursuant to CPL 10.20 (3) (a) to sit as a local court in order to
arraign defendant on the felony complaint, and defendant was therefore
held for the action of the grand jury of the appropriate superior
court (see CPL 180.30 [1]). The plea entered in the superior court,
i.e., County Court, thus properly comported with the requirements of
CPL 195.20.

     To the extent that defendant’s contention that he was denied
effective assistance of counsel survives the plea (see People v
Hamilton, 59 AD3d 973, lv denied 12 NY3d 854; People v Burke, 256 AD2d
1244, lv denied 93 NY2d 851), we conclude that it is without merit
(see generally People v Ford, 86 NY2d 397, 404). We have reviewed
defendant’s remaining contention and conclude that it is without
merit.

     All concur except CENTRA and CARNI, JJ., who dissent and vote to
reverse in accordance with the following Memorandum: We respectfully
disagree with the conclusion of our colleagues that County Court had
jurisdiction to accept defendant’s plea to the superior court
information (SCI). We therefore dissent.

     Contrary to the theory advanced by the People, the instances in
which a superior court may sit as a local court for purposes of
arraignment are defined by statute and are limited in nature.
Specifically, CPL 10.20 (3) (a) provides in relevant part that
“[s]uperior court judges may, in their discretion, sit as local
criminal courts for the . . . purposes . . . [of] conducting
arraignments, as provided in” CPL 180.20 (2). Contrary to the view
espoused by the majority, superior court judges do not have unlimited
discretion to decide when and under what circumstances they may sit as
local criminal courts inasmuch as their discretion is limited by CPL
10.20 (3) (a).

     Pursuant to CPL 180.20 (2), “[w]hen a defendant arrested by a
police officer for a felony has been brought before a superior court
judge sitting as a local criminal court for arraignment upon a felony
criminal complaint charging such felony, such judge must, as a local
criminal court, arraign the defendant upon such felony complaint.”
Here, it is undisputed that defendant was not arrested with respect to
                                 -3-                           281
                                                         KA 09-00436

the second felony complaint. Thus, CPL 180.20 (2) is not applicable,
and the SCI is jurisdictionally defective.

     We would therefore reverse the judgment, vacate defendant’s plea,
dismiss the SCI and remit the matter to County Court for proceedings
pursuant to CPL 470.45.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
