DEFENDANT CANNOT PLEAD GUILTY TO A VIOLATION OF A STATUTE WHICH HAD NOT BEEN ENACTED AT THE TIME OF THE OFFENSE, THE DEFECT IS JURISDICTIONAL AND SURVIVES A WAIVER OF APPEAL (THIRD DEPT).

The Third Department held that sexual abuse first degree charge in the superior court information (SCI) was based on a statute which had not yet been enacted at the time of the offense. The defect was jurisdictional and survived the waiver of appeal:

Initially, defendant contends that the waiver of indictment and the SCI are jurisdictionally defective with respect to the crime of sexual abuse in the first degree under Penal Law § 130.65 (4) because this provision of the Penal Law was not in effect in 2009 when the alleged criminal conduct occurred. Preliminarily, we note that defendant is not precluded by her unchallenged waiver of the right to appeal from raising this jurisdictional challenge … . The People concede that a jurisdictional defect exists inasmuch as the relevant Penal Law provision did not become effective until November 1, 2011 … , and a defendant may not be charged with a crime that does not exist at the time that the act was committed … . Consequently, defendant’s plea of guilty to sexual abuse in the first degree must be vacated and count 2 of the SCI charging her with this crime must be dismissed. People v Gannon, 2018 NY Slip Op 08582, Thrid Dept 12-13-18