Opinion
12679 SCI No. 3174/18 Case No. 2019-1447
12-17-2020
The PEOPLE of the State of New York, Respondent, v. Gabriel RAMOS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Daniel Krumholz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Daniel Krumholz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Kern, Oing, Moulton, JJ.
Judgment, Supreme Court, New York County (Kevin B. McGrath, J. at plea; Laurie Peterson, J. at sentencing), rendered October 24, 2018, convicting defendant of criminal possession of a controlled substance in the third degree and sentencing him to a term of one year, unanimously affirmed.
Defendant's waiver of indictment and prosecution by superior court information was not jurisdictionally defective, where the entire waiver colloquy took place in open court, even if the record is ambiguous whether defendant signed the waiver document just before the plea proceeding or during it (see People v. Moore , 137 A.D.3d 704, 27 N.Y.S.3d 380 [1st Dept. 2016], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ). The written waiver is dated the same day as the plea proceeding, and defendant signed the waiver, which acknowledges that it was signed "in open court" in counsel's presence. Defense counsel also signed the document and confirmed it was signed in open court in his presence. The court also signed a statement on it which states that it is "satisfied that the waiver complies with [CPL] 195.10 and 195.20," and approved the waiver (see People v. Myers , 32 N.Y.3d 18, 84 N.Y.S.3d 406, 109 N.E.3d 555 [2018] ).
Under the presumption of regularity, absent specific proof to the contrary, the law presumes that the requirements for a valid waiver of indictment ( CPL 195.20 ) were satisfied ( People v. Torres , 265 A.D.2d 226, 227, 696 N.Y.S.2d 458 [1st Dept. 1999], lv denied 94 N.Y.2d 886, 705 N.Y.S.2d 18, 726 N.E.2d 495 [2000] ; see also People v. Dominique , 90 N.Y.2d 880, 881, 661 N.Y.S.2d 597, 684 N.E.2d 27 [1997] ). We find unpersuasive defendant's assertion that the record establishes the invalidity of the waiver.