| People v Antoniou |
| 2009 NY Slip Op 01250 [59 AD3d 805] |
| February 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherAntoniou, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (James R. Farrell of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered June 22, 2005, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the second degree and burglary in the third degree.
As a result of his possession of narcotic prescription drugs allegedly stolen from a pharmacyon December 9, 2004, defendant was charged in a felony complaint with criminal possession of acontrolled substance in the first degree. Defendant waived indictment and consented toprosecution by superior court information, which charged him with criminal possession of acontrolled substance in the second degree and burglary in the third degree. Defendant laterpleaded guilty to those charges, signed a waiver of his right to appeal and received the promisedsentence under the terms of the plea agreement. Defendant appealed and we affirmed (40 AD3d1206 [2007]). Defendant then moved for a writ of error coram nobis to vacate our earlierdecision. We granted his motion and reinstated his appeal (52 AD3d 938 [2008]).
We find merit in defendant's argument that his prosecution by superior court information forthe crime of criminal possession of a controlled substance in the second degree, a class A-IIfelony, was jurisdictionally defective and, therefore, his waiver of indictment and his plea ofguilty on that charge were invalid (see CPL 195.10 [1] [former (b)]; People vTrueluck, 88 [*2]NY2d 546, 550-551 [1996]; People vMarrow, 301 AD2d 673, 674 n 1 [2003]; People v Young, 241 AD2d 690, 692[1997]). Although CPL 195.10 (1) (b) was amended in 2008 to preclude waiver of indictmentonly where the charge is a "class A felony punishable by death or life imprisonment" (L 2008, ch401, § 1), the statute in effect at the time of defendant's alleged crimes precluded waiverwhen the charge was a class A felony. Inasmuch as defendant was charged with criminalpossession of a controlled substance in the first degree, a class A-I felony, and later with criminalpossession of a controlled substance in the second degree, a class A-II felony, his waiver ofindictment and plea of guilty were unauthorized and invalid. Nor are we persuaded by thePeople's contention that the waiver was permissible because the Drug Law Reform Act of 2004reduced the sentencing for drug-related crimes (see L 2004, ch 738, § 41 [d-1]).That act did not become effective until after commission of the crimes charged against defendantand it is not to be applied retroactively (see People v Utsey, 7 NY3d 398, 403-404 [2006]).[FN*]
In addition, since defendant's guilty plea was premised on an agreement that the sentencesimposed would run concurrently on the two crimes to which he was pleading, we are constrainedto vacate his plea as to both crimes and dismiss the superior court information (see People vFuggazzatto, 62 NY2d 862, 863 [1984]; People v Espinal, 10 AD3d 326, 331 [2004], lv denied 3NY3d 740 [2004]; People v Brugman, 111 AD2d 562, 563 [1985]).
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is reversed,on the law, plea vacated and superior court information dismissed.
Footnote *: Although County Court and thePeople apparently agreed that defendant would be sentenced under the provisions of the DrugLaw Reform Act and thereby avoid a later application for resentencing under that act, thiswell-intentioned plan could not circumvent the constitutional and statutory limitations on thewaiver of indictment that are jurisdictional and nonwaivable (see People v Zanghi, 79NY2d 815, 817 [1991]).