| People v Janelle |
| 2017 NY Slip Op 00188 [146 AD3d 808] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Catherine Janelle, Appellant. |
Labe M. Richman, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Christine DiSalvo, and Deborah Wassel of counsel), forrespondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Rosengarten, J.), rendered August 6, 1998, convicting her of attempted criminal sale ofa controlled substance in the third degree, upon her plea of guilty, and imposingsentence, and (2), by permission, from an order of the same court (Mullings, J.), datedDecember 4, 2014, which, after a hearing, denied her motion pursuant to CPL 440.10 tovacate the judgment of conviction.
Ordered that the judgment is reversed, on the law, the defendant's plea is vacated, thesuperior court information is dismissed, the felony complaint is reinstated, the matter isremitted to the Supreme Court, Queens County, and the People are granted leave topresent this matter to a grand jury; and it is further,
Ordered that the appeal from the order is dismissed as academic in light of ourdetermination on the appeal from the judgment.
By felony complaint dated May 22, 1998, the defendant was charged with criminalpossession of a controlled substance in the first degree (Penal Law § 220.21[1]), two counts of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]), and criminal possession of a controlled substance in the thirddegree (Penal Law § 220.16 [1]). Criminal possession of a controlledsubstance in the first degree is a class A-I felony (see Penal Law§ 220.21).
In connection with a negotiated plea, the defendant executed a written waiver ofindictment, agreeing to be prosecuted by a superior court information charging her withattempted criminal sale of a controlled substance in the third degree (Penal Law§§ 110.00, 220.39). The defendant also executed a written waiver ofthe right to appeal. The defendant pleaded guilty to attempted criminal sale of acontrolled substance in the third degree in full satisfaction of the superior courtinformation.
The matter comes before us on direct appeal from the defendant's judgment ofconviction, and on an appeal from an order of the Supreme Court denying, after ahearing, the defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction. The defendant contends, inter alia, that her waiver of indictment was invalid.We agree.
[*2] Contrary to the People'scontention, "[t]he defendant's challenge to the validity of [her] waiver of indictment isnot forfeited by [her] plea of guilty and would not be precluded by any valid waiver ofthe right to appeal" (People vYunga, 122 AD3d 951, 951 [2014]; see People v Barnhill, 130 AD3d 839 [2015]). "Nor doesthat claim require preservation" (People v Barnhill, 130 AD3d at 839), as the"[f]ailure to adhere to the statutory procedure for waiving indictment . . .may be considered jurisdictional, affecting 'the organization of the court or the mode ofproceedings prescribed by law' " (People v Boston, 75 NY2d 585, 589 n[1990], quoting People v Patterson, 39 NY2d 288, 295 [1976], affd 432US 197 [1977]).
CPL 195.10 provides, in relevant part, that "[a] defendant may waive indictment andconsent to be prosecuted by superior court information when . . . thedefendant is not charged with a class A felony punishable by death or life imprisonment."Thus, the Court of Appeals has held: "[W]hen an accused is held for Grand Jury actionupon a felony complaint that charges a class A felony . . . a waiver ofindictment with respect to that felony complaint is unauthorized" (People vTrueluck, 88 NY2d 546, 551 [1996]). Here, the felony complaint charged thedefendant with criminal possession of a controlled substance in the first degree. Thatcrime is a class A-I felony (see Penal Law § 220.21), which ispunishable by an indeterminate sentence with a mandatory maximum term of lifeimprisonment (see Penal Law § 70.00 [2] [a]). Accordingly, thedefendant could not waive indictment and agree to be prosecuted by superior courtinformation (see People v Trueluck, 88 NY2d at 551; People v Woolson,195 AD2d 949, 949-950 [1993]; People v Murphy, 147 AD2d 715, 716-717[1989]; People v Sledge, 90 AD2d 588 [1982]).
Under these circumstances, the judgment of conviction must be reversed, thedefendant's plea vacated, the superior court information dismissed, the felony complaintreinstated, and the matter remitted to the Supreme Court, Queens County, with leavegranted to the People to present the matter to a grand jury.
In light of the foregoing, the appeal from the order denying the defendant's motionpursuant to CPL 440.10 is academic, and must be dismissed. Leventhal, J.P., Cohen,Miller and Connolly, JJ., concur.