| People v Stevenson |
| 2013 NY Slip Op 04498 [107 AD3d 1576] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AaronStevenson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered September 28, 2011. The judgment convicted defendant, upon his plea ofguilty, of rape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated, the superior court information is dismissed and the matter isremitted to Erie County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the first degree (Penal Law § 130.35 [1]). Defendant was chargedby felony complaint with the forcible rape of one individual, but after arraignment andhis waiver of indictment, County Court granted the People's motion to amend thesuperior court information (SCI) to charge defendant with the forcible rape of a differentindividual. The court accepted defendant's guilty plea to the charge of forcible rape withrespect to the second individual.
As the People correctly concede, the SCI is jurisdictionally defective, and wetherefore reverse the judgment of conviction. We note that defendant's contention thatthe SCI is jurisdictionally defective does not require preservation, and that contentionsurvives defendant's valid waiver of the right to appeal (see People v Cieslewicz, 45AD3d 1344, 1345 [2007]; People v Edwards, 39 AD3d 875, 876-877 [2007]). "[T]hedesignation of a[n] [individual] in the [SCI] different from the [individual] named in thefelony complaint renders the crime contained in the information a different crimeentirely" (Edwards, 39 AD3d at 876). Thus, defendant was not held for action ofa grand jury on the charge in the SCI inasmuch as "it was not an offense charged in thefelony complaint or a lesser-included offense of an offense charged in the felonycomplaint" (Cieslewicz, 45 AD3d at 1345 [internal quotation marks omitted];see generally CPL 195.20). Present—Centra, J.P., Fahey, Carni andSconiers, JJ.