| People v Hickson |
| 2018 NY Slip Op 07145 [165 AD3d 1166] |
| October 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason F. Hickson, Appellant. |
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (MartinEfman, J.), rendered December 2, 2016, convicting him of attempted criminal possession of acontrolled substance in the fourth degree, upon his plea of guilty, and imposing sentence.
Ordered the judgment is affirmed.
The defendant was charged by felony complaint with committing criminal possession of acontrolled substance in the fourth degree under Penal Law § 220.09 (1) on January26, 2016. Superior court information No. 987/16 (hereinafter SCI) erroneously charged thedefendant with committing criminal possession of a controlled substance in the fourth degreeunder Penal Law § 220.09 (1) on February 26, 2016. The defendant waived his rightto be prosecuted by an indictment and pleaded guilty under the SCI to attempted criminalpossession of a controlled substance in the fourth degree pursuant to Penal Law§§ 110.00 and 220.09 (1). At the plea proceeding, the defendant admitted thatthe crime to which he pleaded guilty occurred on January 26, 2016.
Where a defendant waives the right to be prosecuted by indictment and consents to beprosecuted by a superior court information, the information "must either charge [the] defendantwith the same crime as the felony complaint or a lesser included offense of that crime" (People v Pierce, 14 NY3d 564,571 [2010]). Here, taking into account the obvious typographical error in the SCI (see People v June, 30 AD3d 1016,1017 [2006]), the defendant was charged in the SCI with the same crime with which he wascharged in the felony complaint (see CPL 195.20; People v Milton, 21 NY3d 133, 137 [2013]; cf. People v Lane, 151 AD3d 884,885 [2017]; People v Walker, 148AD3d 1570 [2017]; People vSiminions, 112 AD3d 974, 975 [2013]). There are no other surrounding facts whichpoint to a different crime or offense. Accordingly, the SCI was not jurisdictionally defective.
Moreover, the defendant's waiver of his right to prosecution by indictment was knowing,voluntary, and intelligent (see People vTennyson, 159 AD3d 1018 [2018]; People v Cardona-Velasquez, 152 AD3d 618 [2017]). The recorddiscloses that the defendant signed a valid written waiver of indictment in open court and in thepresence of his attorney (see NY Const, art I, § 6; CPL 195.20; People vCardona-Velasquez, 152 AD3d at 618). The waiver of indictment was also signed by [*2]defense counsel, an assistant district attorney, and the SupremeCourt, which approved the waiver after finding that it complied with CPL 195.10 and 195.20(see CPL 195.30; People v Hill, 269 AD2d 404, 405 [2000]). Additionally, duringthe plea allocution, the defendant acknowledged that he understood the waiver. Scheinkman, P.J.,Rivera, Miller and LaSalle, JJ., concur.