Opinion
KA 02-01528.
Decided March 19, 2004.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered May 15, 2002. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.
KENNETH HUNT, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty to a superior court information, of assault in the second degree (Penal Law § 120.05). Defendant contends that his waiver of indictment was ineffective because he had not been held for action by the grand jury. "Contrary to defendant's contention, the record fails to establish that defendant did not waive a preliminary hearing [or] that a hearing was not held" ( People v. Chad S., 237 A.D.2d 986, 986, lv denied 90 N.Y.2d 856; see People v. Barber, 280 A.D.2d 691, 692-693, lv denied 96 N.Y.2d 825). The record contains the Divestiture to Superior Court form indicating that defendant was held for grand jury action, and that judicial process is entitled to a presumption of regularity that "may be overcome only by substantial evidence" ( People v. Foster, 1 N.Y.3d 44, 48; see People v. Harrison, 85 N.Y.2d 794, 796). In any event, "[b]ecause the record of the plea proceeding establishes that [County Court] was satisfied with the waiver and executed an order to that effect, we may presume that the matter was properly before that court" ( Chad S., 237 A.D.2d at 986 [internal citations omitted]; see Barber, 280 A.D.2d at 693). We have reviewed defendant's remaining contention and conclude that it is without merit.