| People v Elric YY. |
| 2020 NY Slip Op 00326 [179 AD3d 1304] |
| January 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Elric YY., Appellant. |
Allen E. Stone Jr., Vestal, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Dooley,J.), rendered June 29, 2017, which sentenced defendant upon his adjudication as ayouthful offender.
Defendant's sole contention on this appeal, which the People have conceded basedon this Court's decision in People v Busch-Scardino (166 AD3d 1314 [2018]), is thatthe waiver of indictment is invalid and the superior court information (hereinafter SCI) isjurisdictionally defective for failing to set forth the approximate time of the chargedoffense in accordance with CPL 195.20. Indeed, that has been the standard we haveapplied since Busch-Scardino, and we further recognize that this is not a casewhere the time of the offense "is unknown or, perhaps, unknowable" (People vBusch-Scardino, 166 AD3d at 1316).
The Court of Appeals recently addressed the validity of appeal waivers in threeconsolidated appeals, and, in one of the appeals, the Court also addressed the validity ofthat defendant's waiver of indictment with respect to charges involving child sexualabuse (People v Lang, 34 NY3d 545, 562-567 [2019]). The asserted jurisdictional flaw in Lang was the factualomission of the date, approximate time and place of the specific offense in the writtenwaiver of indictment (34 NY3d at 555-556). To resolve that contention, the Courtexplained that, "[i]n assessing the facial sufficiency of facts alleged as to non-elements ofthe crime in an accusatory instrument, the fundamental concern is whether the defendanthad reasonable notice of the charges for double jeopardy purposes and to prepare adefense" (34 NY3d at 570). The Court elaborated that "the omission fromthe indictment waiver form of non-elemental factual information that is not necessaryfor a jurisdictionally-sound indictment is . . . forfeited by a guilty plea" (34 NY3d at 569). Notably, the defendant in Lang made"no claim that he lacked notice of the precise crimes for which he waived prosecution byindictment. Nor could he, since the dates and places of the offenses were sufficientlydetailed in each of the actual accusatory instruments—the three local courtcomplaints and the SCI—charging [him]" (34 NY3d at 569). Finally, the Court noted that "all defendantscan seek a bill of particulars as the remedy to obtain the more specific informationnecessary for notice purposes" (34 NY3d at 570). On that basis, the Court concluded that therewas no jurisdictional infirmity and that "having pleaded guilty without raising any legalchallenge to the contents of [the waiver of indictment] form in the trial court," thedefendant's argument was forfeited by his guilty plea (34 NY3d at 570).
The reasoning of Lang requires this Court to reassess and abandon thestandard enunciated in Busch-Scardino. There is no question here that the waiverof indictment was signed in open court with counsel present in accordance with theprocedural requirements set forth in NY Constitution, article I, § 6, which"establishes the prima facie validity of the waiver of the right to prosecution byindictment" (People vMyers, 32 NY3d 18, 23 [2018]). The "approximate time" of the arson chargeunder review constitutes nonelemental factual information. Lang instructs that weshould look not only at the waiver of indictment and the SCI, but also at the localaccusatory instruments to ascertain whether adequate notice was provided. Here, thefelony complaint mirrors both the waiver and the SCI by providing the date and specificaddress, but without specifying the approximate time. Nonetheless, defendant raised noobjection before County Court, made no demand for a bill of particulars and "lodges noclaim that he lacked notice of the precise crime[ ] for which he waived prosecution byindictment" (People v Lang, 34 NY3d at 569). In context, we conclude that the defecthere was not jurisdictional and that defendant forfeited his challenge upon his plea ofguilty (see People v Shindler, 179 AD3d 1306, 2020 NY Slip Op 00327 [2020] [decided herewith]).
Egan Jr., J.P., Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.