Opinion
687 KA 18-00796
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Tyshawn K. KING, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ABIGAIL D. WHIPPLE OF COUNSEL), FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that his waiver of indictment and consent to be charged under a single-count superior court information (SCI) was defective because the felony complaint charged a lesser included offense of a charge, arising from the same underlying incident, on which he had already been indicted. We reject that contention (see generally People v. D'Amico , 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990] ; People v. Colon , 42 A.D.3d 411, 412, 840 N.Y.S.2d 579 [1st Dept. 2007] ; People v. Waid , 26 A.D.3d 734, 735, 809 N.Y.S.2d 330 [4th Dept. 2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384 [2006] ). The fact that a defendant has already been indicted for a related offense does not prohibit a waiver of indictment on a "new charge contained in [a subsequent] felony complaint" ( D'Amico , 76 N.Y.2d at 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 ). Although we agree with defendant that a lesser included offense of a related charge on which a defendant has already been indicted would not constitute a "new charge" that would permit defendant to waive indictment and consent to be prosecuted by an SCI (see Colon , 42 A.D.3d at 412, 840 N.Y.S.2d 579 ; see generally People v. Pierce , 14 N.Y.3d 564, 568, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ), we nevertheless reject defendant's contention inasmuch as the offense charged in the subsequent felony complaint—criminal possession of a weapon in the second degree ( § 265.03 [3] )—is not a lesser included offense of the related charge on which he was indicted, criminal use of a firearm in the first degree (§ 265.09 [1]; see People v. Argueta , 194 A.D.3d 857, 859-860, 149 N.Y.S.3d 104 [2d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 680, 172 N.E.3d 792 [2021] ).
To establish that a count is a lesser included offense, a defendant must show " ‘that it is theoretically impossible to commit the greater crime without at the same time committing the lesser’ " ( People v. Repanti , 24 N.Y.3d 706, 710, 5 N.Y.S.3d 332, 28 N.E.3d 511 [2015], quoting People v. Glover , 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ). "Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution," and defendant must demonstrate that one offense is a lesser included offense of the other "in all circumstances, not only in those presented in the particular case" ( id. ). Defendant failed to do so. Comparing the applicable statutes, we conclude that criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) can "only be committed if the possession occurs outside of the defendant's home or place of business," an element that is not required by the count of criminal use of a firearm in the first degree ( Argueta , 194 A.D.3d at 859, 149 N.Y.S.3d 104 ; see § 265.09 [1]). To the extent that defendant relies on People v. Lott , 55 A.D.3d 1274, 1276, 864 N.Y.S.2d 626 (4th Dept. 2008) and ( People v. Fowler , 45 A.D.3d 1372, 1374, 845 N.Y.S.2d 599 [4th Dept. 2007], lv denied 9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206 [2008] ) for the contrary conclusion, those cases addressed former Penal Law § 265.03 (2), which did not contain this location-based element.
As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Grabowski , 200 A.D.3d 1718, 1718, 155 N.Y.S.3d 866 [4th Dept. 2021] ). Contrary to defendant's contention, however, the sentence is not unduly harsh or severe.