| People v Busch-Scardino |
| 2018 NY Slip Op 07979 [166 AD3d 1314] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nancy Busch-Scardino, Appellant. |
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered February 2, 2017, convicting defendant upon her plea of guiltyof the crime of aggravated criminal contempt.
In connection with an incident during which defendant entered a residence inviolation of a duly served order of protection, she was charged with burglary in thesecond degree, aggravated criminal contempt, criminal contempt in the first degree,criminal mischief in the fourth degree and resisting arrest. Defendant appeared beforeCounty Court and executed a waiver of indictment (see CPL 195.10), which thecourt approved, and the People filed a superior court information (hereinafter SCI)charging her with aggravated criminal contempt. She later appeared before the court andpleaded guilty to aggravated criminal contempt, reaffirmed her waiver of indictment andwaived her right to appeal. In accordance with her plea agreement, the court sentenceddefendant, as a second felony offender, to a prison term of 3 to 6 years. Defendantappeals.
A criminal defendant has the right to indictment by a grand jury but may waive thatright in open court and consent to prosecution by an SCI (see NY Const, art I,§ 6; CPL 195.10). Defendant acknowledges that she agreed to beprosecuted by an SCI, but argues that the parties must strictly comply with the statutoryrequirements to waive indictment or the waiver is invalid [*2]and, accordingly, the SCI is jurisdictionallydefective.[FN*] Ifthe parties failed to strictly comply with the statutory mandate for waiving indictment,defendant's judgment of conviction and plea must be vacated and the SCI dismissed(see People v Boston, 75 NY2d 585, 589 [1990]; People v Hulstrunk, 163 AD3d1177, 1178 [2018]).
To validly execute a waiver of indictment, the defendant must sign a writteninstrument that contains "the name of the court in which it is executed, the title of theaction, and the name, date and approximate time and place of each offense to be chargedin the [SCI]" (CPL 195.20). Although there are additional requirements to waiveindictment (see CPL 195.20; see also CPL 195.10), defendant challengesonly her waiver's omission of the "approximate time and place" of the alleged offense.The waiver here stated that the SCI would charge the crime of aggravated criminalcontempt "as having been committed on or about the 18th day of June, 2016, in theTown of Niskayuna and County of Schenectady, and State of New York."
When an SCI is attached to the waiver of indictment or filed simultaneously with it,courts may read both forms together, as a single document, to satisfy the requirements ofCPL 195.20 (see People vSterling, 27 AD3d 950, 952 [2006], lv denied 6 NY3d 898 [2006];People v Salvalo, 286 AD2d 636, 636 [2001], lv denied 97 NY2d 687[2001]). The record indicates that the SCI was filed with County Court during the sameappearance that defendant executed the waiver of indictment. The SCI more particularlydescribes that the offense occurred "in the vicinity of" a specific street address. Listingthe town may have been sufficient to meet the statutory requirement of stating an"approximate . . . place" (see People v Windley, 228 AD2d 875,876-877 [1996], lv denied 88 NY2d 997 [1996]) but, considering the waiver ofindictment and the SCI together as a single document, the street address certainlysatisfied that requirement.
In contrast, neither the waiver of indictment nor the SCI contained the time of theoffense. Courts have held that "[w]hen time is not an essential element of an offense, theindictment, as supplemented by a bill of particulars, may allege the time in approximateterms. The indictment must, however, set forth a time interval which reasonably servesthe function of protecting defendant's constitutional right to be informed of the natureand cause of the accusation, so as to enable the defendant to prepare a defense and to usethe judgment against further prosecution for the same crime" (People v Watt, 81NY2d 772, 774 [1993] [internal quotation marks and citations omitted]; see People vMorris, 61 NY2d 290, 294 [1984]; People v Garcia, 141 AD3d 861, 863 [2016], lvdenied 28 NY3d 929 [2016]). Those cases deal with indictments, however, notwaivers of indictment. Pursuant to the statute, an indictment must include a statement"that the offense charged therein was committed on, or on or about, a designated date, orduring a designated period of time" (CPL 200.50 [6]), whereas CPL 195.20 requires thatwaivers of indictment include the offense's "date and approximate time"(emphasis added). "[I]n the interpretation of a statute[,] we must assume that theLegislature did not deliberately place a phrase in the statute which was intended to serveno purpose[,] and each word must be read and given a distinct and consistent meaning"(Matter of Rodriguez v Perales, 86 NY2d 361, 366 [1995] [internal quotationmarks, ellipsis and citations omitted]). Simply stating that the offense occurred on, or onor about, a specified date or within a range of time (such as a certain week, month orspan of months) may meet the statutory requirements for an indictment (see People vMorris, 61 NY2d at 294; People v Garcia, 141 AD3d at 863-864), but isinsufficient to meet CPL 195.20's additional "approximate time" requirement for awaiver of indictment (but see People v Windley, 228 AD2d at 876). Any otherinterpretation would render the statute's language requiring the "approximate time"superfluous or redundant.
This case does not present a situation where the time of the offense is unknown or,perhaps, unknowable (compare People v Morris, 61 NY2d at 294; People vGarcia, 141 AD3d at 863-864). Indeed, the record contains police reports thatinclude the time that the incident occurred and was reported. Inasmuch as the waiver ofindictment does not contain all of the statutorily-required information (see CPL195.20), that waiver is invalid and the related SCI is jurisdictionally defective. Thus, wemust reverse the judgment of conviction and dismiss the SCI (see People vHulstrunk, 163 AD3d at 1178; People v Seals, 135 AD3d 985, 987 [2016]). "If warranted,further proceedings may be had on the felony complaints in the appropriate court"(People v Hulstrunk, 163 AD3d at 1178 [internal quotation marks, brackets andcitations omitted]; see People v Seals, 135 AD3d at 987).
Garry, P.J., Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and superior court information dismissed.
Footnote *:This jurisdictionalchallenge is not precluded by defendant's guilty plea or her waiver of the right to appeal,nor is it subject to the preservation requirement (see People v Hulstrunk, 163 AD3d 1177, 1178 n [2018];People v Davenport, 106AD3d 1197, 1197 [2013], lv denied 21 NY3d 1073 [2013]).