| People v Eulo |
| 2017 NY Slip Op 08684 [156 AD3d 720] |
| December 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Eulo, Appellant. |
Michael A. Ciaffa, Uniondale, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (W. Thomas Hughes of counsel; VictoriaMassimino on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Corrigan,J.), rendered October 22, 2015, convicting him of attempted robbery in the second degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, the Superior CourtInformation is dismissed, and the matter is remitted to the Supreme Court, Nassau County, forfurther proceedings on the felony complaint.
The defendant was charged by felony complaint with robbery in the first degree and criminalpossession of a weapon in the third degree. The defendant later waived indictment by a grandjury and pleaded guilty under a Superior Court Information to attempted robbery in the seconddegree.
The New York Constitution provides that "[n]o person shall be held to answer for a capital orotherwise infamous crime . . . unless on indictment of a grand jury" (NY Const, artI, § 6). The constitutional requirement is "rooted in the belief that the public shouldhave a check against the potential abuse of power by those vested with the prosecutorial authorityof the State" (People v Perez, 83 NY2d 269, 273 [1994]). Accordingly, New York courtshave viewed this constitutional requirement a "public fundamental right" which is "requisite tojurisdiction" (People ex rel. Battista v Christian, 249 NY 314, 318 [1928]; see Peoplev Boston, 75 NY2d 585, 587 [1990]; Matter of Simonson v Cahn, 27 NY2d 1, 3-4[1970]).
However, the New York Constitution, "since 1974, has contained an exception allowingdefendants to waive indictment under certain circumstances" (People v Pierce, 14 NY3d 564, 567 [2010]). Accordingly, the NewYork Constitution now provides that "a person held for the action of a grand jury upon a chargefor such an offense, other than one punishable by death or life imprisonment, with the consent ofthe district attorney, may waive indictment by a grand jury and consent to be prosecuted on aninformation filed by the district attorney" (NY Const, art I, § 6). The New YorkConstitution further states that "such waiver shall be evidenced by written instrument signed bythe defendant in open court in the presence of his or her counsel" (id.).
"[S]ince an infringement of defendant's right to be prosecuted only by indictment implicatesthe jurisdiction of the court, [such a] claim may be reviewed even though [a] defendant did notobject to being prosecuted [by a Superior Court Information] and, in fact, consented to beprosecuted on it" (People v Zanghi, 79 NY2d 815, 817 [1991]). "Further, because it isjurisdictional, an infringement upon the right to be prosecuted by indictment is not waived by theentry of a guilty plea" (id. at 817). A defendant's right to review of this issue similarlysurvives a valid waiver of the right to appeal (see People v Edwards, 39 AD3d 875, 876-877 [2007]; People v Colon, 39 AD3d 661,662 [2007]).
Here, as the defendant correctly contends, and as the People correctly concede, the record onappeal does not contain a signed waiver of the defendant's right to be prosecuted by anindictment. Although a written waiver of indictment appears in the record, it was not signed bythe defendant. Furthermore, contrary to the People's contention, although the transcript of theplea proceedings indicates that the defendant signed a document denominated as a writtenindictment waiver, that reference in the transcript alone is insufficient to satisfy the constitutionalrequirement that a waiver of indictment "be evidenced by written instrument signed by thedefendant" (NY Const, art I, § 6; see CPL 195.20). Since the failure tocomply with this constitutional requirement amounts to a jurisdictional defect in the pleaproceedings (see NY Const, art I, § 6; People v Zanghi, 79 NY2d at817; People v Colon, 39 AD3d at 662), the judgment must be reversed and the SuperiorCourt Information must be dismissed (see generally People v Pierce, 14 NY3d at 574; People v Cieslewicz, 45 AD3d1344, 1345 [2007]; People v Edwards, 39 AD3d at 876-877; People v Rivera, 24 AD3d 367,371 [2005]).
In light of this disposition, we need not address the parties' remaining contentions. Mastro,J.P., Hall, Miller and Brathwaite Nelson, JJ., concur.