BECAUSE THE GRAND JURY MINUTES WERE NOT PART OF THE MOTION TO AMEND THE INDICTMENT OR THE RECORD ON APPEAL, IT COULD NOT BE DETERMINED WHETHER THE DEFENDANT WAS ACTUALLY INDICTED ON THE OFFENSE CHARGED IN THE AMENDED INDICTMENT; PLEA VACATED AND AMENDED INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the amended indictment, held that, because the grand jury minutes did not accompany the motion to amend the indictment and were not available to the appellate court, it could not be determined whether defendant was indicted on the charged offense, a jurisdictional defect. The People argued that the grand jury voted on the offense charged in the amended indictment but the wrong subdivision of the statute was set forth in the original indictment:

“The right to indictment by a [g]rand [j]ury has . . . been recognized as not merely a personal privilege of the defendant but a public fundamental right, which is the basis of jurisdiction to try and punish an individual”… . “[S]ince an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court,” this claim is not waived by a guilty plea and may be raised for the first time on appeal … .  Thus, “[b]efore a person may be publicly accused of a felony, and required to defend against such charges, the [s]tate must a [g]rand [j]ury that sufficient legal reasons exist to believe the person guilty” … . To that end, an indictment ensures that “the crime for which the defendant is brought to trial is in fact one for which he [or she] was indicted by the [g]rand [j]ury, rather than some alternative seized upon by the prosecution” … , providing a safeguard against prosecutorial authority by requiring the grand jury to “assess[] the sufficiency of the prosecutor’s case” … .

The record before us only establishes that a grand jury indicted defendant for violating subdivision (7) of Penal Law § 120.05, not subdivision (3) of that statute. In their motion to amend, the People stated that “the grand jury was instructed on the correct section of the statute” — presumably subdivision (3) of Penal Law § 120.05 … — and that the amendment therefore did not change the theory of their case “as reflected in the instructions and the evidence before the [g]rand [j]ury,” asserting that the charge in the original indictment (under subdivision [7]) was an “inadvertent misstatement.” It is unclear if the People were representing that the grand jury actually indicted defendant under subdivision (3). People v Mathis, 2020 NY Slip Op 03696, Third Dept 7-2-20