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THE SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense:

… [D]efendant pleaded guilty, as charged in the SCI, to attempted robbery in the second degree under Penal Law §§ 110.00 and 160.10 (1), a different crime from robbery in the first degree (see Penal Law § 160.15 [2]), which was charged in the felony complaint. To be guilty of the offense charged in the SCI, defendant must have attempted to “forcibly steal[] property” and done so “when . . . aided by another person actually present” (Penal Law § 160.10 [1]). However, the crime of robbery in the first degree in the felony complaint charged defendant with “forcibly steal[ing] property” while “he or another participant in the crime . . . [i]s armed with a deadly weapon” (Penal Law § 160.15 [2]). “As charged here, [attempted] robbery in the second degree requires an element not required by robbery in the first degree — namely, that defendant be ‘aided by another person actually present'” … . Thus, inasmuch as it is possible to commit the crime charged in the felony complaint — robbery in the first degree — without committing the crime charged in the SCI — attempted robbery in the second degree — the crime charged in the SCI is not a lesser included offense of the former … .

Given that the SCI here did not contain either an offense charged in the underlying felony complaint or a lesser included offense thereof, the SCI upon which defendant’s plea was based was jurisdictionally defective … . People v McCall, 2021 NY Slip Op 03083, Third Dept 5-13-21

 

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