| People v Priest |
| 2015 NY Slip Op 05828 [130 AD3d 1489] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPaul J. Priest, Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered March 25, 2014. The judgment convicted defendant, upon his plea of guilty, ofcourse of sexual conduct against a child in the first degree and rape in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea and waiver of indictment are vacated, the superior court information isdismissed, and the matter is remitted to Jefferson County Court for proceedings pursuantto CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of course of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]) and rape in the third degree (§ 130.25 [2])."As the People correctly concede, the waiver of indictment and superior courtinformation are defective and, therefore, the plea is a nullity and must be vacated. Where,as here, a defendant is charged with a class A felony, the defendant cannot validly waiveindictment or consent to be prosecuted by a superior court information" (People v Mayo, 21 AD3d1316, 1316-1317 [2005]; see CPL 195.10 [1] [b]; People v Trueluck,88 NY2d 546, 549-550 [1996]). We therefore vacate defendant's plea and his waiver ofindictment, and we dismiss the superior court information. "Of course, the People maypresent the case to the [g]rand [j]ury" (People v Ford, 159 AD2d 933, 934[1990]). Present—Scudder, P.J., Carni, Lindley, Valentino and Whalen, JJ.