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THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT).

The Third Department, dismissing the superior court information, noted the record did not indicate the waiver of indictment was signed in open court, which is a jurisdictional defect:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” provided that “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court and contains a written waiver of indictment bearing the date of that appearance, which defendant and defense counsel acknowledged signing, the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . Moreover, neither the written waiver of indictment, to which the District Attorney executed consent … , nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court … . In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Camlin, 2023 NY Slip Op 01821, Third Dept 4-6-23

Practice Point: If the record does indicate the waiver of indictment was signed in open court, the superior court information will be dismissed.

 

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