| People v Jones |
| 2019 NY Slip Op 05236 [173 AD3d 1569] |
| June 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward J. Jones, Appellant. |
Craig Meyerson, Peru, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered September 13, 2017, convicting defendant upon his plea of guilty of the crime of rape inthe second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information(hereinafter SCI) charging him with rape in the second degree. The charge arose from defendant'sconduct on November 9, 2016 when he had sexual intercourse with a 14-year-old female whomhe met through the Internet. He pleaded guilty to this charge and waived his right to appeal. Inaccordance with the terms of the plea agreement, he was sentenced to four years in prison,followed by 10 years of postrelease supervision. He appeals.
Defendant contends, among other things, that the judgment of conviction must be reverseddue to the omission of necessary information in the waiver of indictment and SCI. Specifically,he asserts that neither of these documents sets forth the time of the alleged incident as requiredby the provisions of CPL 195.20. Preliminarily, we note that "[d]efendant's jurisdictionalchallenge is not precluded by either his guilty plea or his waiver of the right to appeal, andfurther, is not subject to the preservation requirement" (People v Hulstrunk, 163 AD3d 1177, 1178 n [2018]). Turning tothe merits, the People concede and we agree that the waiver of indictment is invalid and the SCIis jurisdictionally defective for failure to set forth the approximate time of the offense inaccordance with CPL 195.20 (seePeople v Busch-Scardino, 166 AD3d 1314, 1315-1316 [2018]; compare People v Sterling, 27 AD3d950, 951 [2006], lv denied 6 NY3d 898 [2006]). Accordingly, the judgment must bereversed. In view of our disposition, we need not consider defendant's remaining claims.
Egan Jr., J.P., Lynch, Mulvey and Devine, JJ., concur. Ordered that the judgment is reversed,on the law, and superior court information dismissed.