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HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department, dismissing the superior court information, determined the waiver of indictment was invalid because there was not evidence it was signed in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney,” and “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 on November 19, 2020, the written waiver of indictment, which defendant and defense counsel acknowledged signing, is dated November 17, 2020, and 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 on [October 14, 2020], nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court” on November 19, 2020 … . “In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed” … . People v Berry, 2023 NY Slip Op 06410, Third Dept 12-14-23

Practice Point: Here the waiver of indictment was deemed invalid because there was no indication the waiver was signed in open court, which is a jurisdictional defect. The superior court information was therefore dismissed.

 

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