Supreme Court, New York County, October 3, 2023

Alvin Bragg, District Attorney (Ellina Cunningham of counsel), for the People.

Carlos Martir for defendant.

On May 18, 2018, the People of the State of New York filed indictment 1815/2018 charging the defendant with two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), based upon allegations that the defendant sold fake Knicks tickets. On May 2, 2019, the People filed indictment 1436/2019 charging the defendant with four counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), based upon allegations that the defendant sold fake tickets to To Kill a Mockingbird. On September 16, 2020, the People filed this indictment charging the defendant with two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), based upon two incidents: on March 18, 2020, she was arrested for an unrelated grand larceny, and at the time of that arrest had 17 bags of heroin and a small scale in her possession; and on May 5, 2020, she was observed in the midst of a drug transaction and had 10 bags of pure fentanyl in her possession.^[FN1]

The defendant is a second felony offender charged with a class B drug felony on indictment 1169/2020. The law requires she plead guilty to a class D felony (CPL 220.10 [5] [a] [iii]) and be sentenced to imprisonment (Penal Law § 60.05 [6]). To avoid this, the parties arranged for the defendant to be rearrested on May 9, 2022, and charged in the Criminal Court of the City of New York (docket CR-012646-22NY) with one count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) based upon her March 18, 2020 {**81 Misc 3d at 678}arrest. On May 27, 2022, the defendant pleaded guilty to that misdemeanor count in Criminal Court, which the parties decided would satisfy the indictments pending here in Supreme Court.

On May 31, 2022, the court rejected the People's oral application to dismiss the three indictments as covered and directed them to move for dismissal pursuant to the Criminal [*2]Procedure Law. On August 30, 2022, the People instead filed and served a "Recommendation for Dismissal." The court accepted the recommendation as a motion to dismiss in the interest of justice pursuant to CPL 210.20 (1) (i). On September 13, 2022, the court issued a decision dismissing indictments 1815/2018 and 1436/2019 on speedy trial grounds and denying dismissal of this indictment. The People did not specifically raise, nor did the court specifically address, the issue of double jeopardy (see US Const, 5th Amend; NY Const, art I, § 6; CPL 40.20). The matter languished in a trial posture for another year.

The court directed the parties to be prepared to commence trial on September 5, 2023. By email September 1, 2023, the People raised their concern that continued prosecution of this matter would be barred by double jeopardy, and their expectation that defense counsel would raise the issue. On September 5, 2023, defense counsel did raise the issue of double jeopardy orally, and the court instructed him to file a motion by September 15. The defendant failed to file a motion. To avoid further delay in this aging case, the court addresses the issue sua sponte.

The May 5, 2020 Criminal Transaction

At the outset, any double jeopardy argument would apply only to count one of the indictment. Criminal Court docket CR-012646-22NY, to which the defendant pleaded guilty, charged only conduct from the alleged March 18, 2020 criminal transaction—possessing 17 bags of heroin and a scale. This plea would not be a bar to continued prosecution of the alleged May 5, 2020 criminal transaction—selling drugs and possessing 10 bags of fentanyl—contained in count two (see CPL 40.10, 40.20).

The Validity of the Misdemeanor Plea

The court finds there is no danger of double jeopardy concerning count one because the defendant's May 27, 2022 misdemeanor plea was a nullity and did not constitute a "previous prosecution" for double jeopardy purposes (Matter of Cummings v Koppell, 212 AD2d 11, 14 [3d Dept 1995]). The Criminal Court{**81 Misc 3d at 679} lacked jurisdiction to accept the filing of the misdemeanor complaint or to accept the plea (see CPL 40.30 [2] [b]). Further, the acceptance of the misdemeanor plea was contrary to legislative intent and the Court of Appeals express judicial policy.

The filing of indictment 1169/2020 divested the Criminal Court of jurisdiction over the criminal transaction. When an indictment is filed in the Supreme Court, Criminal Term for New York County, it divests the Criminal Court of the City of New York of jurisdiction (CPL 10.30 [2]).^[FN2] The filing of the indictment conveys upon the Supreme Court jurisdiction not only of the charged offenses, but of the criminal transaction itself (see People v Ford, 62 NY2d 275, [*3]282-283 [1984]).^[FN3] The filing of indictment 1169/2020, therefore, divested the Criminal Court of jurisdiction over the defendant's conduct on March 18, 2020, that was "so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or . . . so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (CPL 40.10 [2] [a], [b]). Because the Criminal Court lacked jurisdiction over the criminal transaction, it should not have accepted the filing of misdemeanor complaint CR-012646-22NY, and that complaint is a nullity.^[FN4]

In Matter of Cummings v Koppell (212 AD2d 11 [3d Dept 1995]), the Appellate Division arrived at the same conclusion under similar circumstances. Five men were indicted in St.{**81 Misc 3d at 680} Lawrence County in 1992 for rape in the first degree. Approximately one week before trial, on a Saturday, the District Attorney filed misdemeanor charges against each of the five defendants in Town Court, charging them with sexual misconduct, an A misdemeanor. Each defendant was arraigned and pleaded guilty. Each defendant was sentenced to a fine of $750, with one defendant also being ordered to complete 200 hours of community service. The District Attorney later dismissed the indictment against the men.

After substantial news coverage and personal pleas by the victim to the Governor, the matter was investigated and the Attorney General assigned as a special prosecutor. The Attorney General moved the Supreme Court for an order vacating the dismissal of the indictment, which the court granted (People v Cummings, 159 Misc 2d 1118 [Sup Ct, St. Lawrence County 1994]). The defendants brought a CPLR article 78 petition against the Attorney General seeking to prohibit further prosecution. The Third Department held the "petitioners' illegal pleas were entered in a court that was wholly without jurisdiction over the subject matter of the action. As such, the pleas and resulting convictions were a nullity and did not constitute a 'previous prosecution' for double jeopardy purposes" (Cummings, 212 AD2d at 14).

To the extent the Court of Appeals holding in People v D'Amico (76 NY2d 877 [1990]) seems to suggest otherwise, it does not so hold. In that case, the Court considered the case of a defendant indicted for murder in the second degree and other crimes. After extensive plea negotiations, the People filed a new felony complaint charging the defendant with criminal use of a firearm in the first degree, arising out of the same incident. The defendant then pleaded guilty to manslaughter in the first degree in satisfaction of the indictment and to a superior court information charging criminal use of a firearm in the first degree in satisfaction of the felony complaint. It is unclear whether the felony complaint was filed in Criminal Court, which lacked jurisdiction, or in Supreme Court, sitting as a local criminal court (see CPL 10.20 [3] [a]).

The D'Amico Court answered only the limited question of whether the procedure for waiver of indictment is available after indictment when the defendant is held for grand jury [*4]action on a new felony complaint (D'Amico, 76 NY2d at 880). The Court concluded it is for two specific reasons: "there exists the explicit statutory predicate for a waiver—an order holding defendant{**81 Misc 3d at 681} for Grand Jury action—and the waiver, by eliminating the need for a superseding indictment, serves both of the statutory purposes [of the waiver statute]" (id.). The question of whether the Criminal Court had jurisdiction to accept the filing in the first place was neither raised nor answered in D'Amico, and it is not controlling on that question.

Courts have consistently upheld a judicial policy of preventing the circumvention of statutory plea restrictions. The legislature has passed a comprehensive scheme governing the disposition of indictments (CPL 220.10 [5]; 220.30) and the appropriate sentences upon conviction of crimes (Penal Law arts 60, 65, 70). A plea taken in violation of that statutory scheme is a nullity (see People v Bartley, 47 NY2d 965, 966 [1979]).^[FN5] The Appellate Division has roundly rejected attempts to circumvent the statutory plea restrictions through lower courts.^[FN6] It is in this respect that the present situation can be readily distinguished from the unique circumstances of D'Amico. The D'Amico Court, in approving the use of a superior court information under its unique circumstances, "emphasized that the plea . . . was in no way improper. The plea-bargaining restrictions of CPL 220.10 were not violated by defendant's plea to first degree manslaughter in satisfaction of the indictment [and] the SCI simply made possible a longer minimum sentence than that available for the manslaughter charge" (D'Amico, 76 NY2d at 880). The present situation arose from efforts to facilitate a plea to the instant indictment in violation of CPL 220.10 and dismiss two other indictments as "covered" in violation of CPL 220.30.

Conclusion

The defendant's May 27, 2022 plea in Criminal Court encompassed only one of the two criminal transactions charged in the indictment. Further, once an indictment is filed in the Supreme Court of the State of New York, the Criminal Court of{**81 Misc 3d at 682} the City of New York lacks jurisdiction to commence a criminal action or accept a plea that arises out of the same criminal transaction as the indictment. Double jeopardy does not apply.