| People v O'Neill |
| 2015 NY Slip Op 05517 [129 AD3d 1382] |
| June 25, 2015 |
| Appellate Division, Third Department |
[*1](June 25, 2015)
| The People of the State of New York, Respondent, vPaul O'Neill, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mark D. Suben, District Attorney, Cortland (Zela E. Brotherton of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered January 31, 2012, convicting defendant upon his plea of guilty of the crimes ofuse of a child in a sexual performance and course of sexual conduct against a child in thefirst degree.
Defendant waived indictment and pleaded guilty to a superior court information(hereinafter SCI) charging him with use of a child in a sexual performance and course ofsexual conduct against a child in the first degree. In accordance with the plea agreement,he was sentenced to an aggregate prison term of 15 years, to be followed by 20 years ofpostrelease supervision. His conviction was thereafter affirmed by this Court on appeal(116 AD3d 1240 [2014]). Subsequently, defendant made a motion to this Court for a writof error coram nobis alleging that appellate counsel was ineffective for his failure to raisethe issue that the SCI was jurisdictionally defective. This Court granted the motion andreinstated the appeal, but limited it to the issue of the jurisdictional validity of theSCI.
The People concede and we must agree, based upon the governing law, that the SCIwas jurisdictionally defective in this case. The crimes charged in the SCI, to whichdefendant pleaded guilty, were required to be the same or lesser included offenses ofthose listed in the felony complaint (see People v Pierce, 14 NY3d 564, 571 [2010]; People v Tun Aung, 117 AD3d1492, 1493 [2014]; Peoplev Gammons, 106 AD3d 1287, 1288 [2013]; see also CPL 195.10 [1] [a];195.20). However, the only crimes listed in the felony complaint were the class E felonyof [*2]possessing a sexual performance by a child andtwo class A misdemeanors. The SCI, on the other hand, charged defendant with the classC felony of use of a child in a sexual performance and the class B felony of course ofsexual conduct against a child in the first degree. Clearly, the latter crimes were not lesserincluded offenses of the former. Accordingly, due to this jurisdictional defect, we areconstrained to conclude that the guilty plea must be vacated and the matter remitted toCounty Court for further proceedings. Defendant's remaining contentions are foreclosedby the order granting coram nobis relief and, in any event, are academic in view of ourdisposition.
Garry, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment is reversed,on the law, plea vacated and matter remitted to the County Court of Cortland County forfurther proceedings not inconsistent with this Court's decision.