| People v Milton |
| 2012 NY Slip Op 01485 [92 AD3d 899] |
| February 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JacobMilton, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Jessica L. Zellner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Mullings,J.), rendered October 28, 2010, convicting him of grand larceny in the first degree, upon his pleaof guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, the superior courtinformation is dismissed, and the matter is remitted to the Supreme Court, Queens County, forfurther proceedings on the felony complaint.
The defendant was charged, by felony complaint, with, inter alia, grand larceny in the firstdegree under Penal Law § 155.42. The felony complaint alleged that the defendantknowingly and unlawfully stole property exceeding one million dollars in value by usingpersonal identifying information he received from four named individuals, and, inter alia,securing mortgages on two properties in the name of one of the alleged victims without thatindividual's knowledge or permission. The defendant waived indictment by a grand jury andpleaded guilty under a superior court information to grand larceny in the first degree and schemeto defraud in the first degree, although the plea to the scheme to defraud count was subsequentlyvacated at the time of sentencing. The charge in the superior court information named twofinancial institutions "and others" as alleged victims of the crimes. As the defendant properlycontends, the judgment of conviction must be reversed, the plea vacated, and the superior courtinformation dismissed.
The grand larceny in the first degree count in the superior court information was not an"offense for which the defendant [had been] held for action of a grand jury" (CPL 195.20), in thatit was not an offense charged in the felony complaint or a lesser-included offense of an offensecharged in the felony complaint (see People v Menchetti, 76 NY2d 473, 477 [1990]; People v Quarcini, 4 AD3d 864,865 [2004]). The designation of the alleged victims in the superior court information differedfrom those named in the felony complaint (see People v Edwards, 39 AD3d 875, 876 [2007]). Thus, thesuperior court information to which the defendant pleaded guilty did not "include at least oneoffense that was contained in the felony complaint" (People v Zanghi, 79 NY2d 815,817-818 [1991]), and, consequently, the superior court information was jurisdictionally defective(id.; see People v Quarcini, 4 AD3d at 865; cf. People v Menchetti, 76NY2d at 475). This defect survives the [*2]defendant's failure toraise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal(see People v Zanghi, 79 NY2d at 818; People v Menchetti, 76 NY2d at 475;People v Edwards, 39 AD3d at 876; People v June, 30 AD3d 1016, 1017 [2006]; People vLibby, 246 AD2d 669, 670 [1998]).
In light of our determination, we need not address the defendant's remaining contentions.Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.