Summary
In People v Johnson, 5 NY3d 752 (2005) the prosecution moved in open court to dismiss the only felony charge in the accusatory instrument thereby leaving a complaint containing two misdemeanor offenses.
Summary of this case from People v. JacksonOpinion
115.
Argued June 7, 2005.
Decided June 30, 2005.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Term of the Supreme Court in the First Judicial Department, entered August 24, 2004. The Appellate Term affirmed a judgment of the Criminal Court of the City of New York, Bronx County (Diane Kiesel, J.), which had convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.
People v. Johnson, 4 Misc 3d 140(A), affirmed.
Laura R. Johnson, New York City ( Martin M. Lucente of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( William K. Clark and Joseph N. Ferdenzi of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Term should be affirmed.
By felony complaint, defendant was charged with one felony count of intimidating a victim or witness in the third degree and two counts each of the following misdemeanors: harassment, aggravated harassment and criminal contempt (all in the second degree). The prosecution moved to dismiss the felony charge, leaving only the misdemeanors. The court dismissed the felony charge without making any statement on the record as to the reason. Thereafter, defendant pleaded guilty to criminal contempt in the second degree and was sentenced to 60 days in jail. The Appellate Term affirmed, and a Judge of this Court granted defendant leave to appeal.
We agree with the Appellate Term that CPL 180.50 is not applicable here. That provision requires that before permitting reduction of a felony charge to a misdemeanor, the court conduct an inquiry to determine whether the available facts and evidence provide a basis for charging a nonfelony offense ( see People v. Yolles, 92 NY2d 960). Here, however, the felony charge was not reduced, it was dismissed altogether, and defendant pleaded guilty to a separately charged misdemeanor. Under the circumstances, no CPL 180.50 inquiry was required.
Order affirmed in a memorandum.