| People v Edwards |
| 2019 NY Slip Op 03108 [171 AD3d 1402] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bikeo K. Edwards, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered June 5, 2017, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Defendant waived indictment and pleaded guilty to attempted criminal possession of aweapon in the second degree as charged in a superior court information. Consistent with theterms of the plea agreement, defendant was sentenced as a second violent felony offender to aprison term of six years, followed by five years of postrelease supervision. Defendantappeals.
Defendant contends that the waiver of indictment was deficient, requiring that the guilty pleabe vacated, because there was not strict compliance with the statutory mandates of CPL 195.20.Specifically, defendant asserts that the superior court information (hereinafter SCI) does not setforth the "approximate time" of the offense nor does the record establish that the waiver ofindictment was signed by defendant in open court.[FN*] With regard to the approximate time of theoffense, such information, which is required by the plain language of the statute, was omittedfrom the SCI (see CPL 195.20; People v Busch-Scardino, 166 AD3d 1314, 1316 [2018]; see also People v Colon-Colon, 169AD3d 187, 192 [2019]). Furthermore, this is not "a situation where the time of the offense isunknown or, perhaps, unknowable" so as to excuse the absence of such information (People vBusch-Scardino, 166 AD3d at 1316). As we have previously noted, "[a]ny otherinterpretation would render the statute's language requiring the 'approximate time' superfluous orredundant" (id.). Inasmuch as defendant's waiver of indictment was not procured in strictcompliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty pleaand dismissal of the SCI (see id.; People v Donnelly, 23 AD3d 921, 921-922 [2005]; see alsoPeople v Page, 88 NY2d 1, 6-10 [1996]). As a result, we need not reach defendant'sremaining contentions.
Egan Jr., J.P., Clark, Mulvey and Devine, JJ., concur. Ordered that the judgment is reversed,on the law, and superior court information dismissed.
Footnote *:Defendant's jurisdictionalchallenge is not precluded by his guilty plea, and it is not subject to the preservation requirement(see People v Zanghi, 79 NY2d 815, 817 [1991]; People v Boston, 75 NY2d 585,589 n [1990]; People v Gannon, 167AD3d 1163, 1164 [2018]).