| People v Seals |
| 2016 NY Slip Op 00065 [135 AD3d 985] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGregory Seals, Appellant. |
Brian M. Quinn, Albany, for appellant.
M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs, for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered June 20, 2014, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the fifth degree.
Police stopped a vehicle that defendant was driving in the Town of Halfmoon,Saratoga County and discovered 42 grams of a substance that field tested positive for thepresence of cocaine. Defendant was charged in two felony complaints with criminalpossession of a controlled substance in the third degree and criminal possession of acontrolled substance in the fifth degree. Thereafter, pursuant to a negotiated pleaagreement, defendant waived indictment, pleaded guilty to a superior court information(hereinafter SCI) that charged him with attempted criminal possession of a controlledsubstance in the fifth degree, and waived his right to appeal. He was sentenced as asecond felony offender to a prison term of 1
Defendant contends that the waiver of indictment and SCI were jurisdictionallydefective in that they did not charge an "offense for which the defendant was held foraction of a grand jury" (CPL 195.20). Pursuant to CPL 195.20, a defendant may waiveindictment and plead guilty to an SCI that names a different offense from that charged inthe felony complaint only when the crime named in the SCI is a lesser included offenseof the original charge (seePeople v Milton, 21 NY3d 133, 136 [2013]; People v Menchetti, 76NY2d 473, 477 [1990]; Peoplev [*2]Gammons, 106 AD3d 1287, 1288[2013]).[FN*] Weagree with defendant that this requirement was not satisfied.
"A crime is a lesser included offense of a charge of a higher degree only when in allcircumstances, not only in those presented in the particular case, it is impossible tocommit the greater crime without concomitantly, by the very same conduct, committingthe lesser offense" (People vBaker, 123 AD3d 1378, 1380 [2014] [citations omitted]; see People vWheeler, 67 NY2d 960, 962 [1986]). To be guilty of the offense charged in the SCI,a defendant must attempt to "knowingly and unlawfully possess[ ] . . .cocaine" that weighs "[500] milligrams or more" (Penal Law§§ 110.00, 220.06 [5]). The first felony complaint charged defendantwith criminal possession of a controlled substance in the third degree, which requiresproof of knowing, unlawful possession of substances containing narcotic drugs that have"an aggregate weight of one-half ounce or more" (Penal Law § 220.16[12]). Considered in the abstract, it is possible to possess or attempt to possess one-halfounce of a mixture of cocaine and some other substance in which the proportion ofcocaine is less than 500 milligrams. Thus, it is possible to commit criminal possession ofa controlled substance in the third degree without also committing attempted criminalpossession of a controlled substance in the fifth degree, and the offense charged in theSCI is not a lesser included offense of the crime charged in the first felonycomplaint.
The second felony complaint charged defendant with criminal possession of acontrolled substance in the fifth degree, which is committed when a person "knowinglyand unlawfully possesses . . . a controlled substance with intent to sell it"(Penal Law § 220.06 [1]). It is possible to possess cocaine with the intent tosell it while not concurrently possessing cocaine weighing more than 500 milligrams, orattempting to do so, as required to commit the crime charged in the SCI (seePenal Law §§ 110.00, 220.06 [5]). Thus, the crime charged in the SCIis not a lesser included offense of the crime charged in the second felony complaint (see People v Nemnom, 123AD3d 740, 741 [2014]; People v Lee, 196 AD2d 509, 510 [1993], lvdenied 82 NY2d 851 [1993]; see also People v Betters, 113 AD3d 934, 935 [2014]).
As the People concede, the determination that the crime charged in the SCI is not alesser included offense of those named in the felony complaints renders the SCIjurisdictionally defective, a failure that survives defendant's guilty plea and waiver of hisright to appeal (see People v Menchetti, 76 NY2d at 475 n; People v Simmons, 27 AD3d786, 786-787 [2006], lv denied 7 NY3d 763 [2006]). Thus, defendant's pleamust be vacated and the SCI dismissed. "If warranted, further proceedings may be had onthe felony complaint in the local criminal court" (People v Nemnom, 123 AD3dat 741).
In light of this determination, defendant's remaining contentions are academic.
Rose, Lynch, Devine and Clark, JJ., concur. Ordered that the judgment is reversed,on the law, and superior court information dismissed.
Footnote *:The provision in CPL195.20 that permits a waiver of indictment and an SCI to include an offense that is"properly joinable" with a crime for which the defendant was held for the action of agrand jury is applicable only when the SCI "also include[s] at least one offense that wascontained in the felony complaint" (People v Zanghi, 79 NY2d 815, 818 [1991]).