People v. Ford, 57 N.Y.2d 262 (1982)
A defendant waives the right to object to a trial court’s error in considering or submitting a lesser crime that is not a lesser included offense if the defendant fails to make a timely objection.
Summary
The New York Court of Appeals held that a defendant waives the right to object to the trial court’s consideration or submission of a lesser crime that is not a lesser included offense of the indicted crime if the defendant does not make a timely objection. The Court reasoned that the constitutional right to be tried only upon indictment is not a limitation on the courts, but on the State, and that failing to object to an improper lesser included offense submission is a waivable defect, not a jurisdictional one. Therefore, convictions for crimes that are technically not lesser included offenses can stand if the defendant did not object at trial.
Facts
Raymond Ford was indicted for robbery. The trial court indicated it would consider grand larceny as a lesser included offense. Ford did not object and was convicted of grand larceny. Gordon Simpson was indicted for manslaughter. The prosecution requested the court to consider assault as a lesser included offense, and Simpson did not object. He was convicted of assault. James Williams was indicted for robbery. He requested the court submit assault and grand larceny as lesser included offenses to the jury, which it did. He was convicted of assault. In each case, the offense of which the defendant was convicted was conceded to be neither the crime for which he was indicted nor a proper lesser included offense under People v. Glover.
Procedural History
In Ford’s case, the Appellate Division reversed the conviction and dismissed the indictment, holding that grand larceny was not a lesser included offense and the defect was a non-waivable jurisdictional error. In Simpson’s case, the Appellate Division affirmed the conviction. In Williams’ case, the Appellate Division affirmed the conviction. The Court of Appeals consolidated the appeals to address the common issue of waiver.
Issue(s)
Whether a defendant, by failing to object to the trial court’s consideration or submission of a crime that is not a lesser included offense of the indicted crime, waives the right to challenge the conviction on that basis.
Holding
Yes, because an error by the trial court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense does not affect the court’s competence to entertain the action; it affects only its authority to enter a judgment on the merits against the defendant on that specific charge, and such an error can be waived.
Court’s Reasoning
The Court of Appeals reasoned that while the New York Constitution requires indictment by a grand jury for infamous crimes, this is a limitation on the State, not a jurisdictional bar to the courts if the defendant fails to object. The court had both personal and subject matter jurisdiction over the offenses due to the initial valid indictment. CPL 300.50(1) provides that any error in submitting a lesser included offense is waived if no timely objection is made. The court emphasized that “a valid and sufficient accusatory instrument is a non waivable jurisdictional prerequisite to a criminal prosecution” (People v Harper, 37 NY2d 96, 99), and “[u]ntil the grand jury shall act, no court can acquire jurisdiction to try” (People ex rel. Battista v Christian, 249 NY 314, 319), but that in each case before them, a valid indictment was returned. The court distinguished cases where no indictment was returned, or where the indictment was inherently defective. The court stated that the constitutional function is to ensure that “before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” (People v Iannone, 45 NY2d 589, 594). Because the Grand Jury had acted by issuing an indictment, the court reasoned that the purpose of the constitutional provision had been satisfied. Therefore, the failure to object constituted a waiver. Chief Judge Cooke wrote a concurring opinion noting that this decision effectively overruled People ex rel. Gray v. Tekben, 57 NY2d 651.