| People v Priest |
| 2017 NY Slip Op 07859 [155 AD3d 1599] |
| November 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Paul J.Priest, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Danielle C. Wild of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedDecember 21, 2015. The judgment convicted defendant, upon his plea of guilty, of course ofsexual conduct against a child in the first degree and rape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea and waiver of indictment are vacated, the superior court information is dismissed and thematter is remitted to Jefferson County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofcourse 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]). In a prior appeal, we reversed thejudgment of conviction, determining that the superior court information (SCI) wasjurisdictionally defective inasmuch as defendant had been charged with, inter alia, a class Afelony and thus could not validly waive indictment or consent to be prosecuted by an SCI (People v Priest, 130 AD3d 1489[4th Dept 2015]). We thus vacated the plea and waiver of indictment and dismissed the SCI,noting that " 'the People may present the case to the [g]rand [j]ury' " (id.at 1489).
On remittal, the People did not present the case to a grand jury but, rather, made a secondattempt to proceed by SCI. As the People correctly concede, the SCI is again jurisdictionallydefective inasmuch as the felony complaint charging defendant with the class A felony was notdismissed until after the waiver of indictment and plea to the SCI. As a result, defendantwas still "charged" with a class A felony when he waived indictment and consented to beprosecuted by an SCI. "Where, as here, a defendant is charged with a class A felony, thedefendant cannot validly waive indictment or consent to be prosecuted by a superior courtinformation" (People v Mayo, 21AD3d 1316, 1316-1317 [4th Dept 2005]; see CPL 195.10 [1] [b]; People vTrueluck, 88 NY2d 546, 551 [1996]; Priest, 130 AD3d at 1489). We therefore vacatedefendant's plea and his waiver of indictment, and we dismiss the SCI, noting again that" 'the People may present the case to the [g]rand [j]ury' " (Priest, 130AD3d at 1489).
Based on our determination, we do not address defendant's remaining contentions.Present—Carni, J.P., Lindley, DeJoseph, Troutman and Winslow, JJ.