| People v Gammons |
| 2013 NY Slip Op 03514 [106 AD3d 1287] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vLepaul Gammons, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Greene County (PulverJr., J.), rendered November 15, 2011, convicting defendant upon his plea of guilty of thecrime of criminal mischief in the second degree.
Defendant was charged in a felony complaint with grand larceny in the third degree.Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guiltyto a superior court information charging him with criminal mischief in the second degree.He was thereafter sentenced as a second felony offender to a prison term of 2 to 4 years.Defendant now appeals, arguing that the superior court information was jurisdictionallydefective.
The Criminal Procedure Law permits a defendant to waive indictment and beprosecuted by a superior court information that charges "any offense for which thedefendant was held for action of a grand jury and any offenses properly joinabletherewith" (CPL 195.20). An offense for which the defendant was held includes lesserincluded offenses of those named in the felony complaint (see People vMenchetti, 76 NY2d 473, 477-478 [1990]; People v Black, 253 AD2d 984,984 [1998], lv denied 92 NY2d 980 [1998]; see also People v Zanghi, 79NY2d 815, 817 [1991]). As the People have conceded, criminal mischief in the seconddegree is not a lesser included offense of grand larceny in the third degree (seeCPL 1.20 [37]; Penal Law §§ 145.10, 155.35). Therefore, the superior courtinformation was jurisdictionally defective and defendant's [*2]plea must be vacated and the matter remitted to CountyCourt for further proceedings on the felony complaint (see People v Morson, 67AD3d 1026, 1027 [2009]; People v Colon, 39 AD3d 661, 662 [2007]).
Lahtinen, Spain and Garry, JJ., concur. Ordered that the judgment is reversed, on thelaw, plea vacated and matter remitted to the County Court of Greene County for furtherproceedings not inconsistent with this Court's decision.