Opinion
2017–08653 Ind. No. 784/16
03-11-2020
The PEOPLE, etc., Respondent, v. Derrell JONES, Appellant.
Paul Skip Laisure, New York, N.Y. (Martin Sawyer of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Eugene J. Dirks of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Martin Sawyer of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Eugene J. Dirks of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant's contention that his waiver of the right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05[2] ; People v. Johnson , 51 N.Y.2d 986, 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048 ; People v. Maldonado , 167 A.D.3d 1047, 1048, 88 N.Y.S.3d 353 ; People v. Tucker , 151 A.D.3d 1085, 1087, 58 N.Y.S.3d 461 ). In any event, the record does not support the defendant's contention that his waiver of the right to a jury trial was not knowing, voluntary, and intelligent (see People v. Fani , 59 A.D.3d 460, 460, 872 N.Y.S.2d 535 ; People v. Butler, 17 A.D.3d 379, 380, 792 N.Y.S.2d 581 ).
Contrary to the defendant's contention, there is no basis for vacating his conviction of assault in the third degree under Penal Law § 120.00(1). Although the defendant was convicted of aggravated criminal contempt under Penal Law § 215.52, assault in the third degree is not a lesser-included offense of that crime (see CPL 1.20[37] ; People v. Davis , 14 N.Y.3d 20, 23, 896 N.Y.S.2d 707, 923 N.E.2d 1095 ; People v. Glover , 57 N.Y.2d 61, 63–64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). It is possible to commit aggravated criminal contempt without committing assault in the third degree under Penal Law § 120.00(1), because aggravated criminal contempt can be committed recklessly (see Penal Law § 215.52 ), whereas assault in the third degree under Penal Law § 120.00(1) requires intent.
However, the defendant was deprived of the effective assistance of counsel at sentencing. A defendant is " ‘entitled to an opportunity to be represented by counsel sufficiently familiar with the case and the defendant's background to make an effective presentation on the question of sentence’ " ( People v. Wiggan , 242 A.D.2d 549, 550, 662 N.Y.S.2d 267, quoting People v. Edmond , 84 A.D.2d 938, 938, 447 N.Y.S.2d 60 [internal quotation marks omitted] ). Here, the defendant's counsel at sentencing made no substantive arguments on the defendant's behalf, and the record demonstrates that counsel had no meaningful knowledge of the case or of the defendant's background. Consequently, we remit the matter to the Supreme Court, Queens County, for resentencing (see People v. Wiggan , 242 A.D.2d at 550, 662 N.Y.S.2d 267 ; People v. Stella , 188 A.D.2d 318, 319, 590 N.Y.S.2d 478 ; People v. Edmond , 84 A.D.2d at 938, 447 N.Y.S.2d 60 ). We express no opinion as to the sentence to be imposed.
RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.