| People v Diego |
| 2019 NY Slip Op 04054 [172 AD3d 1776] |
| May 23, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Roger Diego, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered January 5, 2017, convicting defendant upon his plea of guilty of thecrime of criminal possession of a weapon in the second degree.
On September 5, 2016, during the execution of a search warrant in an apartment wheredefendant resided, drugs and a loaded handgun were reportedly found. Defendant was initiallycharged in felony complaints with criminal possession of a weapon in the second degree inviolation of Penal Law § 265.03 (3), criminal possession of stolen property in thefourth degree and five drug-related counts for possessing narcotics, methamphetamines andmarihuana and for selling narcotics on an earlier date, and was held for grand jury action on thosecharges. Pursuant to a plea agreement, defendant thereafter waived indictment and consented tobe prosecuted by a superior court information (hereinafter SCI) charging him with criminalpossession of a weapon in the second degree, pursuant to Penal Law § 265.03 (1)(b). In satisfaction of all charges, defendant pleaded guilty to criminal possession of a weapon inthe second degree as charged in the SCI (see Penal Law § 265.03 [1] [b]),waived his right to appeal and was sentenced, in accordance with the agreement, to a prison termof 3
As the People concede, and our review of the record confirms, defendant is correct that thewaiver of indictment and SCI are jurisdictionally defective because they did not charge an"offense for which the defendant was held for action of a grand jury" (CPL 195.20; see People v Seals, 135 AD3d 985,986 [2016]).[FN1] Pursuantto CPL 195.20, a waiver of indictment must contain "each offense to be charged in the [SCI]"which "may include any offense for which the defendant was held for action of a grand jury andany offense or offenses properly joinable." To that end, "a defendant is held for the action of a[g]rand [j]ury on both the offense charged in the felony complaint as well as its lesser includedoffenses" (People v Menchetti, 76 NY2d 473, 474 [1990]; see People v Milton, 21 NY3d133, 136 [2013]), because, "[f]or purposes of waiver of indictment, a charge that is a lesserincluded offense of a crime charged in the felony complaint is viewed as the 'same offense' andmay be substituted for the original charge in a waiver of indictment and SCI" (People v Pierce, 14 NY3d 564,568 [2010]). Accordingly, "a defendant may waive indictment and plead guilty to an SCI thatnames a different offense from that charged in the felony complaint only when the crime namedin the SCI is a lesser included offense of the original charge" (People v Seals, 135 AD3dat 986; accord People v Hulstrunk,163 AD3d 1177, 1178 [2018]).
Here, defendant pleaded guilty, as charged in the SCI, to criminal possession of a weapon inthe second degree under Penal Law § 265.03 (1) (b), a different crime from thatcharged in any of the felony complaints resolved by the plea agreement, including the onecharging him with criminal possession of a weapon in the second degree under Penal Law§ 265.03 (3). "A crime is a lesser included offense of a charge of a higher degreeonly when in all circumstances, not only in those presented in the particular case, it is impossibleto commit the greater crime without concomitantly, by the very same conduct, committing thelesser offense" (People v Hulstrunk, 163 AD3d at 1178 [internal quotation marks andcitations omitted]). To be guilty of the offense charged in the SCI, defendant must have"possess[ed] a loaded firearm" and done so "with intent to use the same unlawfully againstanother" (Penal Law § 265.03 [1] [b]). The weapon-related crime in the felonycomplaint charged defendant with "possess[ing] any loaded firearm" outside of his home orbusiness (Penal Law § 265.03 [3]; see People v Gray, 151 AD3d 1470, 1472 [2017], lv denied30 NY3d 949 [2017], cert denied 583 US &mdash, 138 S Ct 1295 [2018]; see also People v Jones, 22 NY3d53, 57-58 [2013]). Inasmuch as it is possible to commit the crime charged in the felonycomplaint—possession of a loaded weapon—without committing the crime chargedin the SCI—possession with intent to use the weapon unlawfully—the crimecharged in the SCI is not a lesser included offense of the former and the SCI could not serve as aproper jurisdictional predicate for defendant's guilty plea (see People v Hulstrunk, 163AD3d at 1178).
Given that the SCI here did not contain either an offense charged in the underlying felonycomplaints or a lesser included offense of the original charges, the SCI upon which defendant'splea was based was jurisdictionally defective (see id.; People v Seals, 135 AD3dat 987; cf. People v Milton, 21 NY3d at 137; People v Menchetti, 76 NY2d at477).[FN2] Accordingly,defendant's plea must be vacated and the SCI dismissed and, if warranted, further proceedings onthe felony complaints may be undertaken (see People v Hulstrunk, 163 AD3d at 1178;People v Seals, 135 AD3d at 987).
Egan Jr., J.P., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment is reversed,on the law, and superior court information dismissed.
Footnote 1:This jurisdictional challenge isnot subject to preservation rules and is not precluded by defendant's guilty plea or waiver ofappeal (see People v Milton, 21NY3d 133, 136 [2013]; People vPierce, 14 NY3d 564, 570 n 2 [2010]; People v Hulstrunk, 163 AD3d 1177, 1178 n [2018]).
Footnote 2:"The provision in CPL 195.20that permits a waiver of indictment and an SCI to include an offense that is 'properly joinable'with a crime for which the defendant was held for the action of a grand jury is applicable onlywhen the SCI 'also includes at least one offense that was contained in the felonycomplaint' " (People v Seals, 135 AD3d at 986 n [brackets omitted], quotingPeople v Zanghi, 79 NY2d 815, 818 [1991]).