State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 2, 2015 106660
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
MICHAEL COXON,
Appellant.
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Calendar Date: June 4, 2015
Before: Garry, J.P., Rose, Devine and Clark, JJ.
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Theodore J. Stein, Woodstock, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci
of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Columbia
County (Nichols, J.), rendered November 12, 2013, convicting
defendant upon his plea of guilty of the crime of failure to
register as a sex offender.
After defendant neglected to register his change of address
within 10 days of moving, he was charged in a felony complaint
with failure to register as a sex offender. Pursuant to a
negotiated plea agreement, defendant waived indictment and
pleaded guilty to a superior court information charging him with
failure to register as a sex offender and waived his right to
appeal. County Court agreed to sentence defendant to no more
than one year in jail, but warned him that a greater sentence was
possible if he failed to appear for sentencing. Thereafter,
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defendant failed to appear for sentencing, prompting County Court
to sentence defendant in abstentia to a prison term of 1 to 3
years. Defendant appeals.
We are unpersuaded by defendant's contention that County
Court did not acquire jurisdiction to conduct the plea hearing.
Although defendant points to the fact that the record does not
indicate, among other things, that the matter was held over for
grand jury action, "the transfer of [his] case to County Court is
evidence that he was held by a local criminal court for grand
jury action, and a mere void in the record is insufficient to
establish his claim" that the statutory requirements were not met
(People v Simmons, 110 AD3d 1371, 1372 [2013] [internal quotation
marks and citation omitted]). Additionally, the record
establishes that defendant not only waived a preliminary hearing,
but signed a waiver of indictment in open court, which was
consented to by the People, whereupon County Court executed an
order approving waiver of indictment. Given the presumption of
regularity accorded to judicial proceedings and the lack of any
evidence by defendant to rebut that presumption, we find the
waiver of indictment to be valid (see People v Simmons, 110 AD3d
at 1372-1373; People v Hauenstein, 106 AD3d 1339, 1339-1340
[2013], lv denied 21 NY3d 1042 [2013]).
Defendant's contention that the enhanced sentence is harsh
and excessive is not barred under the terms of his appeal waiver;
nevertheless, we find it to be without merit.
Garry, J.P., Rose and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court