| People v Titus |
| 2019 NY Slip Op 02588 [171 AD3d 1256] |
| April 4, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Danyel J. Titus, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Mariah S. Foster, Law Intern), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered April 13, 2017, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the third degree.
Defendant executed a waiver of indictment and was charged in a superior court information(hereinafter SCI) with burglary in the third degree. As part of a global disposition involving thatcharge, as well as a charge of violation of probation, defendant, as is relevant here, pleaded guiltyto attempted burglary in the third degree. He was sentenced as a second felony offender inaccordance with the terms of the plea agreement to a prison term of 1
We agree with defendant's contention that, because there was not strict compliance with thestatutory mandates of CPL 195.20, his waiver of indictment is invalid, thereby requiring reversalof the judgment of conviction.[FN*] The plain language of CPL 195.20 requires thata waiver of indictment include the date and approximate time of the charged offense. Althoughthe waiver of indictment and the SCI, when filed together, may be read as a single document inorder to satisfy the requirements of the statute, here, neither the waiver of indictment nor the SCIproperly indicate the time of the charged offense (see CPL 195.20; People v Busch-Scardino, 166 AD3d1314, 1316 [2018]; People vSterling, 27 AD3d 950, 952 [2006], lv denied 6 NY3d 898 [2006]). Moreover,this is not "a situation where the time of the offense is unknown or, perhaps, unknowable" so asto excuse the absence of such information (People v Busch-Scardino, 166 AD3d at 1316).Accordingly, inasmuch as defendant's waiver of indictment was not procured in strict compliancewith the statutory provisions, it is invalid and the corresponding SCI is jurisdictionally defective,thereby requiring vacatur of his guilty plea and dismissal of the SCI (see id.). Based onour holding, defendant's remaining contentions have been rendered academic.
Garry, P.J., Lynch, Devine and Rumsey, JJ., concur. Ordered that the judgment is reversed,on the law, and superior court information dismissed.
Footnote *:Defendant's jurisdictionalchallenge is not precluded by his guilty plea and is not subject to the preservation requirement(see People v Zanghi, 79 NY2d 815, 817 [1991]; People v Busch-Scardino, 166 AD3d 1314, 1314 n [2018]; People v Hulstrunk, 163 AD3d1177, 1178 n [2018]).