People v Graubard (2023 NY Slip Op 01308) People v Graubard 2023 NY Slip Op 01308 Decided on March 15, 2023 Appellate Division, Second Department Dillon, J.P. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 15, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. ROBERT J. MILLER LINDA CHRISTOPHER BARRY E. WARHIT, JJ. 2021-08235 (Ind. No. 38/14) [*1]The People of the State of New York, respondent, vMichael D. Graubard, appellant. APPEAL by the defendant from an order of the County Court (Jessica Z. Segal, J.), dated October 12, 2021, and entered in Dutchess County. The order, insofar as appealed from, upon granting the defendant's motion pursuant to CPL 440.46-a(2)(a) to vacate a judgment of the same court rendered August 28, 2014, convicting him of criminal possession of marihuana in the first degree, upon his plea of guilty, substituted a conviction of criminal possession of cannabis in the first degree pursuant to CPL 440.46-a(2)(b)(ii). MRTA Law, P.C., New York, NY (Wei Hu of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent. DILLON, J.P. OPINION & ORDEROn this appeal from an order determining the defendant's motion pursuant to the newly enacted CPL 440.46-a, the main questions presented are whether the County Court, having vacated the defendant's conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction, and whether the court failed to consider if it was not in the interests of justice to do so. We hold that the court, having vacated the defendant's conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction. We further hold that the court committed reversible error by failing to consider, as required by the statute, whether it was not in the interests of justice to substitute a conviction for an appropriate lesser offense.I. BackgroundIn 2014, the defendant was convicted, upon his plea of guilty, of criminal possession of marihuana in the first degree, a class C felony, under Penal Law former § 221.30. According to the People, this conviction resulted from a traffic stop and arrest where the defendant was found to possess approximately 114 pounds of marihuana. For his conviction, the defendant was sentenced to a term of imprisonment of two years plus two years of postrelease supervision.In 2021, the defendant moved pursuant to the newly enacted CPL 440.46-a(2)(a) to vacate the judgment of conviction. He contended that there were severe or ongoing consequences as a result of his conviction or sentence. The defendant, then age 54, asserted that he lived with and cared for his mother, who was 86 years of age, and twice per week drove …
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