| People v Melvin |
| 2017 NY Slip Op 02538 [148 AD3d 1753] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JacobMelvin, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered March 18, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty under an indictment of criminal possession of a weapon in the second degree(Penal Law § 265.03 [3]). In appeal No. 2, defendant appeals from a judgmentconvicting him upon his pleas of guilty under a superior court information (SCI) of two counts ofassault in the second degree (§ 120.05 [7]).
Preliminarily, the People correctly concede that defendant did not validly waive his right toappeal in a written waiver of the right to appeal, given the total absence of an oral colloquy onthat subject (see People v Banks, 125 AD3d 1276, 1277 [2015], lv denied 25NY3d 1159 [2015]). Nevertheless, we reject defendant's challenge to the severity of the sentencein appeal No. 1.
Defendant contends that the SCI in appeal No. 2 is jurisdictionally defective because itcharged him with committing two assaults on December 3, 2014, even though he waivedindictment only with respect to two assaults committed on December 23, 2014. Initially, we notethat "[d]efendant's challenges to the jurisdictional requirements of the waiver of indictment andthe superior court information need not be preserved for [appellate] review" and are not forfeitedby the guilty plea (People v Lugg, 108 AD3d 1074, 1074 [2013]; see People vBoston, 75 NY2d 585, 589 n [1990]; People v Jackson, 128 AD3d 1279, 1279 [2015], lv denied26 NY3d 930 [2015]). Here, defendant was initially charged by felony complaint with twocounts of assault in the second degree committed on December 23, 2014, and defendantsubsequently waived his right to indictment on those particular charges. The SCI, however,charged defendant with committing two acts of assault in the second degree on December 3,2014, rather than December 23, 2014, and the special information attached to the SCI providedthat the assaults occurred on December 23, 2014. During the plea colloquy, Supreme Courtreferenced both dates.
In our view, defendant never waived his constitutional right to indictment for any offensestaking place on December 3, 2014; rather, he waived his constitutional right to indictment fortwo assaults committed on December 23, 2014. Under these circumstances, as we recentlyexplained in People v Walker ([appeal No. 2] 148 AD3d 1570, 1571 [2017]), the SCI is jurisdictionally defective and must be dismissed. We disagreewith the People that the date-of-crime discrepancy here may be excused or overlooked as aministerial typographical error. In our view, it is not "obvious" (People v June, 30AD3d 1016, 1017 [2006], lv denied 7 NY3d 813 [2006], denied reconsideration 7 NY3d 868 [2006]),nor is it "clear" (Jackson, 128 AD3d at 1279-1280), that the date-of-crime discrepancy atissue here is in fact a mere typographical error (see e.g. People v Siminions, 112AD3d 974, 975 [2013], lv denied 24 NY3d 1088 [2014]). We therefore reverse thejudgment in appeal No. 2, vacate the guilty pleas, dismiss the SCI, and remit the matter toSupreme Court for proceedings pursuant to CPL 470.45 (see People v Mano, 121 AD3d 1593, 1593 [2014], lvdismissed 24 NY3d 1121 [2015]; People v Tun Aung, 117 AD3d 1492, 1492 [2014]).
In view of the foregoing, defendant's remaining contentions in appeal No. 2 are academic.Present—Smith, J.P., Carni, NeMoyer, Curran and Troutman, JJ.