| People v Siminions |
| 2013 NY Slip Op 08670 [112 AD3d 974] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shamika Siminions, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andWilliam H. Branigan of counsel; Jonathan K. Yi on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Chin-Brandt, J.), rendered May 13, 2011, convicting her of assault in the second degreeand assault in the third degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and thesuperior court information is dismissed.
The defendant was charged, in a felony complaint, inter alia, with assault in thesecond degree and assault in the third degree. The defendant waived indictment by agrand jury and pleaded guilty under a superior court information (hereinafter SCI) toassault in the second degree and assault in the third degree. The defendant correctlycontends that the SCI was jurisdictionally defective.
Where a defendant waives the right to be prosecuted by indictment and consents tobe prosecuted by SCI, the SCI "must either charge [the] defendant with the same crime asthe felony complaint or a lesser included offense of that crime" (People v Pierce, 14 NY3d564, 571 [2010]; see NY Const, art I, § 6; CPL 195.10 [1] [a]; CPL195.20; People v Zanghi, 79 NY2d 815, 817 [1991]; People v Menchetti,76 NY2d 473, 476 [1990]). Under the circumstances of this case, this Court cannotconclude that the defendant was charged in the SCI with the same offense with which hewas charged in the felony complaint. There is a factual discrepancy between the twodocuments, in that they charge the defendant with assaulting two different victims, andthere are insufficient surrounding facts to reveal that the assault charges actually refer tothe same incident (cf. People vMilton, 21 NY3d 133, 136-137 [2013]; see People v Stevenson, 107 AD3d 1576 [2013]; People v Edwards, 39 AD3d875, 875-876 [2007]).
Accordingly, the judgment must be reversed, the plea vacated, and the SCIdismissed. The defendant has already served her sentence and, under the circumstancesof this case, we decline to remit the matter for further proceedings on the felonycomplaint (see People v Burwell, 53 NY2d 849, 851 [1981]; People vFlynn, 79 NY2d 879, 882 [1992]; People v Simmons, 32 NY2d 250[1973]; People v Barreto,70 AD3d 959 [2010]; People v Gibson, 54 AD3d 350 [2008]; People v MaioNi, 293 AD2d 552 [2002]; cf. People v Allen, 39 NY2d 916, 917 [1976]).Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.