| People v Hulstrunk |
| 2018 NY Slip Op 05234 [163 AD3d 1177] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark C. Hulstrunk, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), renderedMay 17, 2017, convicting defendant upon his plea of guilty of the crime of recklessendangerment in the first degree.
Defendant initially was charged in two felony complaints with menacing a police officer andcriminal possession of a weapon in the second degree. Thereafter, defendant waived indictmentand pleaded guilty to a superior court information (hereinafter SCI) charging him with menacinga police officer, and he was sentenced to time served and five years of probation. Upon appeal,this Court determined that the sentence imposed was illegal, vacated the sentence and remittedthe matter for further proceedings (147 AD3d 1159, 1160 [2017]). Further plea negotiationsensued and, in April 2017, defendant agreed to waive indictment and plead guilty to a SCIcharging him with reckless endangerment in the first degree in exchange for a sentence of timeserved and four years of probation. The plea agreement also included a waiver of the right toappeal. County Court thereafter sentenced defendant in accordance with the terms of the pleaagreement, and defendant now appeals—contending that the waiver of indictment and theSCI were jurisdictionally defective.[FN*]
The People concede—and our review of the record confirms—that the waiverof indictment and SCI were jurisdictionally defective because the crime charged in the SCI wasnot "an[ ] offense for which . . . defendant was held for action of a grand jury" (CPL195.20), nor was it a lesser included offense of the crimes charged in the felony complaints. Onthis latter point, "a defendant may waive indictment and plead guilty to an SCI that names adifferent offense [*2]from that charged in the felony complaintonly when the crime named in the SCI is a lesser included offense of the original charge" (People v Seals, 135 AD3d 985,986 [2016]). "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 to commit thegreater crime without concomitantly, by the very same conduct, committing the lesser offense"(People v Lancaster, 143 AD3d1046, 1053 [2016] [internal quotation marks and citations omitted], lv denied 28NY3d 1147 [2017]; accord People v Seals, 135 AD3d at 986).
Reckless endangerment in the first degree is not a lesser included offense of either menacinga police officer or criminal possession of a weapon in the second degree because it would beentirely possible to possess or display the weapons required to commit either of the greatercrimes, i.e., menacing a police officer (see Penal Law § 120.18) or criminalpossession of a weapon in the second degree (see Penal Law § 265.03),without concomitantly "recklessly engag[ing] in conduct [that] creates a grave risk of death toanother person"—a required element of reckless endangerment in the first degree (PenalLaw § 120.25). Simply put, the SCI at issue here did not contain either an offensecharged in the underlying felony complaints or a lesser included offense of the original chargesand, therefore, "the [SCI] upon which . . . defendant's plea was based. . . was jurisdictionally defective" (People v Nemnom, 123 AD3d 740, 741 [2014] [citations omitted];see People v Seals, 135 AD3d at 987). Accordingly, "defendant's plea must be vacatedand the SCI dismissed. If warranted, further proceedings may be had on the felony complaint[s]in the [appropriate] court" (People v Seals, 135 AD3d at 987 [internal quotation marksand citation omitted]).
Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and superior court information dismissed.
Footnote *:Defendant's jurisdictionalchallenge is not precluded by either his guilty plea or his waiver of the right to appeal and,further, is not subject to the preservation requirement (see People v Pierce, 14 NY3d 564, 570 n 2 [2010]; People v Guidry, 158 AD3d 901,901 [2018]; People v Dubois, 150AD3d 1562, 1564 n [2017]).