| People v Nemnom |
| 2014 NY Slip Op 08460 [123 AD3d 740] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Nemnom, Appellant. |
Thomas T. Keating, Dobbs Ferry, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie G. Sapakoff andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Lorenzo, J.), rendered May 21, 2012, convicting him of attempted criminal possessionof a controlled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, superior courtinformation No. 11-00385 is dismissed, and the matter is remitted to the Supreme Court,Westchester County, for further proceedings consistent herewith.
The defendant was charged, by felony complaint, with criminal possession of acontrolled substance in the third degree under Penal Law § 220.16 (12), aclass B felony. He waived indictment by a grand jury and pleaded guilty under a superiorcourt information to attempted criminal possession of a controlled substance in the thirddegree under Penal Law §§ 110.00 and 220.16 (1), a class C felony.As the defendant contends and the People correctly concede, the judgment of convictionmust be reversed, the plea vacated, and the superior court information dismissed.
The single count in the superior court information was not an "offense for which thedefendant [had been] held for action of a grand jury" (CPL 195.20), in that it was not anoffense 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]). Attempted criminal possession of a controlled substance in the third degreeunder Penal Law §§ 110.00 and 220.16 (1) is not a lesser includedoffense of criminal possession of a controlled substance in the third degree under PenalLaw § 220.16 (12), because the former crime contains the element "withintent to sell" that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20 [37]; People v Edwards, 39 AD3d 875, 876 [2007]; People vLaboy, 208 AD2d 954, 955 [1994]). Thus, it is clear that the superior courtinformation upon which the defendant's plea was based did not "include at least oneoffense that was contained in the felony complaint" or a lesser-included offense of anoffense charged in the felony complaint (People v Zanghi, 79 NY2d 815, 818[1991]), and the superior court information was jurisdictionally defective (see People v Pierce, 14 NY3d564, 574 [2010]; People v Menchetti, 76 NY2d at 477; People v Morson, 67 AD3d1026 [2009]; People vEdwards, 39 AD3d 875 [2007]; People v Colon, 39 AD3d 661 [2007]). This [*2]defect survives the defendant's failure to raise this claim inthe Supreme Court, his plea of guilty, and his waiver of the right to appeal (seePeople v Zanghi, 79 NY2d at 817; People v Menchetti, 76 NY2d at 475 n;People v Iannone, 45 NY2d 589, 600 [1978]; People v Edwards, 39AD3d at 876). Accordingly, we reverse the judgment of conviction, vacate thedefendant's plea of guilty, dismiss the superior court information, and remit the matter tothe Supreme Court, Westchester County. If warranted, further proceedings may be hadon the felony complaint in the local criminal court. Dillon, J.P., Dickerson, Roman andSgroi, JJ., concur.