| Matter of Peterson v Becker |
| 2010 NY Slip Op 02898 [72 AD3d 1250] |
| April 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Clint R. Peterson, Petitioner, v Carl F. Becker, asJudge of the County Court of Delaware County, Respondent. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi.
Peters, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR506 [b] [1]) to prohibit respondent from trying petitioner in the County Court of DelawareCounty on a superior court information charging him with the crimes of promoting a sexualperformance of a child and possessing a sexual performance of a child.
Petitioner was charged by two felony complaints with promoting a sexual performance of achild and possessing a sexual performance of a child based upon his alleged electronicdissemination and possession of a photographic image depicting an instance of sexual conductby a female child. He thereafter executed a written waiver of indictment in open court,consenting to be prosecuted by a superior court information, and County Court approved thewaiver. Petitioner subsequently retained new counsel, who moved to dismiss the superior courtinformation for failure to comply with CPL 30.30 or, in the alternative, sought leave to file a latedemand for a bill of particulars, demand to produce and omnibus motion. As relevant here, it wasasserted that the People's statement of readiness was illusory because the felony complaints werefacially insufficient. County Court denied petitioner's motion and petitioner commenced thisCPLR article 78 proceeding in the nature of a writ of prohibition seeking to enjoin [*2]respondent, County Judge of Delaware County, from proceeding totrial on the superior court information.
Petitioner contends that his waiver of indictment was not knowing, voluntary and intelligentand that the superior court information was therefore jurisdictionally defective such that CountyCourt lacks jurisdiction over him. Initially, we note that, because a writ of prohibition may beused for collateral review of an error of law "where the very jurisdiction and power of the courtare in issue" (Matter of Steingut v Gold, 42 NY2d 311, 315 [1977]; see Matter ofMorgenthau v Erlbaum, 59 NY2d 143, 149-150 [1983], cert denied 464 US 993[1983]) and "[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictionalprerequisite to a criminal prosecution" (People v Harper, 37 NY2d 96, 99 [1975]; seePeople v Franco, 86 NY2d 493, 500 [1995]), a writ of prohibition is a proper vehicle forpetitioner to bring this claim. Nevertheless, we find it to be without merit.
Petitioner fails to show that his waiver of indictment was not knowing, voluntary andintelligent or was otherwise invalid. "A defendant may waive indictment and consent to beprosecuted by superior court information when . . . a local criminal court has heldthe defendant for the action of a grand jury" (CPL 195.10 [1]). "Being so 'held' for the action of a[g]rand [j]ury involves the filing of a felony complaint on which [the] defendant has beenarraigned and a finding after a preliminary hearing (unless waived by [the] defendant) thatreasonable cause exists to believe that [the] defendant committed a felony" (People vBarber, 280 AD2d 691, 692 [2001], lv denied 96 NY2d 825 [2001]; see CPL180.70; People v D'Amico, 76 NY2d 877, 879 [1990]; People v Gallagher, 34 AD3d 941,942 [2006], lv denied 8 NY3d 880 [2007]).
Here, petitioner was arraigned upon the two felony complaints and waived a preliminaryhearing, the matter was transferred to County Court, and County Court approved petitioner'swaiver of indictment upon a finding that it complied with the requirements of CPL article 190(see People v Barber, 280 AD2d at 692; People v Valenti, 264 AD2d 904, 905[1999], lv denied 94 NY2d 926 [2000]). Indeed, "[petitioner's] signed waiver ofindictment expressly states that he was held for the action of the . . . grand jury,making his waiver valid" (People vCottelli, 46 AD3d 952, 953 [2007], lv denied 9 NY3d 1032 [2008]; seePeople v Valenti, 264 AD2d at 905). Moreover, the terms of the waiver clearly set forth itsramifications and it was signed, in open court, by both petitioner and his attorney. Other thanpetitioner's bare assertions that, had he been counseled otherwise, he would not have waived hispreliminary hearing or indictment, no other proof has been offered in support of his claim. Underthese circumstances, we find that the waiver of indictment was knowingly, voluntarily andintelligently made (see People v Brown, 309 AD2d 1084, 1084 [2003], lv denied1 NY3d 595 [2004]; People v Powers, 302 AD2d 685, 685-686 [2003]). As such, thesubsequently filed superior court information was not jurisdictionally defective (see People v Talback, 32 AD3d559, 560 [2006], lv denied 7 NY3d 870 [2006]; People v Barber, 280 AD2dat 693). Since it superceded the felony complaints, any insufficiency in those initiatingaccusatory instruments is irrelevant (see People v Jackson, 286 AD2d 912, 912 [2001],lv denied 97 NY2d 755 [2002]; see also People v Schell, 300 AD2d 1120, 1121[2002], lv denied 99 NY2d 632 [2003]).
Malone Jr., Kavanagh, McCarthy and Garry, JJ., concur. Adjudged that the petition isdismissed, without costs.