SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

281 

KA 09-00436 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ANTHONY ATTEA, DEFENDANT-APPELLANT. 

CHARLES J. GREENBERG, BUFFALO, FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DOUGLAS A. GOERSS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Shirley

Troutman, J.), rendered October 8, 2008. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of stolen

property in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: Defendant appeals from a judgment convicting him,

upon his plea of guilty, of criminal possession of stolen property in

the third degree (Penal Law § 165.50). Contrary to defendant’s

contention, the plea was not jurisdictionally defective (cf. People v

Zanghi, 79 NY2d 815). Defendant was arrested for criminal possession

of stolen property in the fourth degree and was issued an appearance

ticket directing him to appear in Buffalo City Court (see CPL 150.20

[2]). A felony complaint was filed in City Court, the appropriate

local court, with respect to that charge (see CPL 150.50 [1]), and a

warrant was issued for defendant’s arrest when he failed to appear

(see CPL 150.60). Defendant was thereafter arrested on an unrelated

charge and was held on the warrant issued on the charge of criminal

possession of stolen property in the fourth degree. The local court

held defendant for the action of a grand jury on that charge (see CPL

180.30 [1]). As part of a plea bargain in County Court that included

defendant’s waiver of the right to appeal and the People’s agreement

not to seek persistent felony offender status, defendant agreed to

waive presentation to the grand jury and to plead guilty to a superior

court information (SCI) charging him with criminal possession of

stolen property in the third degree (see CPL 195.10 [1] [a]). 

Inasmuch as defendant was not held for the action of a grand jury on

that offense, the court lacked jurisdiction to accept the plea to a

higher charge (see People v Pierce, 14 NY3d 564, 568-571; Zanghi, 79

NY2d at 817). The People therefore filed a new felony complaint

charging defendant with criminal possession of stolen property in the
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KA 09-00436 

third degree and requested that County Court exercise its discretion

to sit as a local criminal court to arraign defendant on the new

felony complaint (see CPL 10.20 [3] [a]), and County Court granted

that request. 

We reject defendant’s contention that the court lacked

jurisdiction to accept his plea to the SCI because he had not been

“arrested” prior to his arraignment on the felony complaint charging

him with criminal possession of stolen property in the third degree. 

A superior court is mandated to sit as a local court to arraign a

defendant on a felony complaint if the defendant is brought before it

following his or her arrest (see CPL 180.20 [2]); however, we reject

defendant’s contention that the court’s jurisdiction is determined by

whether the defendant was actually arrested on the felony complaint. 

Here, we conclude that the court properly exercised its discretion

pursuant to CPL 10.20 (3) (a) to sit as a local court in order to

arraign defendant on the felony complaint, and defendant was therefore

held for the action of the grand jury of the appropriate superior

court (see CPL 180.30 [1]). The plea entered in the superior court,

i.e., County Court, thus properly comported with the requirements of

CPL 195.20. 

To the extent that defendant’s contention that he was denied

effective assistance of counsel survives the plea (see People v

Hamilton, 59 AD3d 973, lv denied 12 NY3d 854; People v Burke, 256 AD2d

1244, lv denied 93 NY2d 851), we conclude that it is without merit

(see generally People v Ford, 86 NY2d 397, 404). We have reviewed

defendant’s remaining contention and conclude that it is without

merit. 

All concur except CENTRA and CARNI, JJ., who dissent and vote to

reverse in accordance with the following Memorandum: We respectfully

disagree with the conclusion of our colleagues that County Court had

jurisdiction to accept defendant’s plea to the superior court

information (SCI). We therefore dissent.

Contrary to the theory advanced by the People, the instances in

which a superior court may sit as a local court for purposes of

arraignment are defined by statute and are limited in nature. 

Specifically, CPL 10.20 (3) (a) provides in relevant part that

“[s]uperior court judges may, in their discretion, sit as local

criminal courts for the . . . purposes . . . [of] conducting

arraignments, as provided in” CPL 180.20 (2). Contrary to the view

espoused by the majority, superior court judges do not have unlimited

discretion to decide when and under what circumstances they may sit as

local criminal courts inasmuch as their discretion is limited by CPL

10.20 (3) (a). 

Pursuant to CPL 180.20 (2), “[w]hen a defendant arrested by a

police officer for a felony has been brought before a superior court

judge sitting as a local criminal court for arraignment upon a felony

criminal complaint charging such felony, such judge must, as a local

criminal court, arraign the defendant upon such felony complaint.” 

Here, it is undisputed that defendant was not arrested with respect to
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KA 09-00436 

the second felony complaint. Thus, CPL 180.20 (2) is not applicable,

and the SCI is jurisdictionally defective. 

We would therefore reverse the judgment, vacate defendant’s plea,

dismiss the SCI and remit the matter to County Court for proceedings

pursuant to CPL 470.45. 

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court