| People v Tun Aung |
| 2014 NY Slip Op 03135 [117 AD3d 1492] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTun Aung, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered May 31, 2012. The judgment convicted defendant, upon his plea of guilty,of attempted strangulation in the second 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 Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted strangulation in the second degree (Penal Law §§ 110.00,121.12), defendant contends that the superior court information (SCI) wasjurisdictionally defective. We agree. The two counts charged in the SCI were notoffenses for which defendant was held for action of a grand jury (see CPL195.20), i.e., those two counts were not included in the felony complaint, and they werenot lesser included offenses of an offense charged in the felony complaint (see People v Pierce, 14 NY3d564, 571 [2010]; People v Menchetti, 76 NY2d 473, 477 [1990]). "[T]heprimary purpose of the proceedings upon such felony complaint is to determine whetherthe defendant is to be held for the action of a grand jury with respect to the chargescontained therein" (CPL 180.10 [1]). Thus, " '[t]he waiver procedure is triggeredby the defendant being held for [g]rand [j]ury action on charges contained in a felonycomplaint . . . and it is in reference to those charges that its availability mustbe measured' " (Pierce, 14 NY3d at 571, quoting People vD'Amico, 76 NY2d 877, 879 [1990]). Inasmuch as the SCI to which defendantpleaded guilty did not "include at least one offense that was contained in the felonycomplaint," it was jurisdictionally defective (People v Zanghi, 79 NY2d 815, 818[1991]). That defect does not require preservation, and it survives defendant's waiver ofthe right to appeal and his guilty plea (see id. at 817; People v Stevenson, 107AD3d 1576, 1576 [2013]; People v Cieslewicz, 45 AD3d 1344, 1345 [2007]).Present—Scudder, P.J., Centra, Fahey, Sconiers and Valentino, JJ.