                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    104621
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

JERRY D. GRAYS,
                    Appellant.
________________________________


Calendar Date:    September 12, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                              __________


      Donna C. Chin, Ithaca, for appellant, and appellant
pro se.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                              __________


Clark, J.

      Appeal from a judgment of the County Court of Otsego County
(Burns, J.), rendered August 5, 2011, upon a verdict convicting
defendant of the crime of conspiracy in the second degree.

      In early October 2010, defendant – then serving a sentence
in the Otsego County jail on a contempt conviction stemming from
various violations of an order of protection in favor of his
ex-girlfriend, Jeanette Hamm – allegedly told a fellow prisoner
that he desired to have Hamm murdered. Defendant's block-mate
discussed the matter with prison officials, and the Otsego County
Sheriff's Department began an investigation. As part of the
investigation, an undercover police officer posing as a potential
assassin talked with defendant on the phone and met with him at
                              -2-                  104621

the jail. Defendant was arrested shortly thereafter and charged
by indictment with the crime of conspiracy in the second degree.
Following a jury trial, defendant was convicted as charged (see
Penal Law §§ 105.15, 105.20). County Court ultimately sentenced
defendant to 8a to 25 years in prison and imposed a lengthy
order of protection against defendant and in favor of Hamm.
Defendant now appeals.

      As the People concede, the indictment is jurisdictionally
defective and must be dismissed inasmuch as it failed to charge
the commission of an overt act in furtherance of the conspiracy
as required by Penal Law § 105.20 (see CPL 200.50 [7] [a]; 200.70
[2] [a]; People v Dreyden, 15 NY3d 100, 103 [2010]; People v
Boula, 106 AD3d 1371, 1371-1372 [2013], lv denied 21 NY3d 1040
[2013], People v McCoy, 89 AD3d 1218, 1221 [2011], lvs denied 18
NY3d 959, 960 [2012]). In light of our determination that the
indictment must be dismissed, a review of defendant's remaining
contentions is unnecessary.

     Peters, P.J., Stein, Garry and Egan Jr., JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
indictment dismissed, without prejudice to the People to
re-present any appropriate charges to another grand jury.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
