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THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE APPROXIMATE TIME AND PLACE OF THE OFFENSES, THIS IS A MODE OF PROCEEDINGS ERROR, PLEA TO THE SUPERIOR COURT INFORMATION VACATED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, reversing County Court, determined the waiver of indictment was jurisdictionally defective in that there was no indication of the time and date of the alleged offenses (rape). Although defendant had waived his right to appeal, the Fourth Department vacated his guilty plea:

… [T]he written waiver does not contain any data whatsoever regarding the “date and approximate time and place of each offense to be charged in the superior court information,” as explicitly required by CPL 195.20. Notwithstanding that defect, County Court determined that the written waiver “fully complie[d] with the provisions of Sections 195.10 and 195.20 of the Criminal Procedure Law” and approved it accordingly (see CPL 195.30 [requiring judicial approval of indictment waiver upon determination that it complies with CPL 195.10 and 195.20]).

The ensuing SCI [superior court information] charged defendant with two counts of second-degree rape under Penal Law § 130.30 (1). Count one alleged that defendant, “between approximately September 1, 2013 and September 9, 2013, in the City of Batavia, County of Genesee, State of New York, being eighteen years old or more, engaged in sexual intercourse with another person less than fifteen years old.” Count two alleged that defendant, “on a second occasion between approximately September 1, 2013 and September 9, 2013, in the City of Batavia, County of Genesee, State of New York, being eighteen years old or more, engaged in sexual intercourse with another person less than fifteen years old.” * * *

Because “an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court” … , the Court of Appeals has repeatedly stressed that the “[f]ailure to adhere to the statutory procedure for waiving indictment” is a “jurisdictional[ defect] affecting the organization of the court or the mode of proceedings prescribed by law’ ” … . People v Colon-colon, 2019 NY Slip Op 01039, Fourth Dept 2-8-19

 

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