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A DEFENDANT CHARGED WITH A CLASS A FELONY CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION PURSUANT TO CPL 195.10 (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s guilty plea and dismissing the superior court information, determined defendant was not eligible to waive the indictment and plead to a superior court information because the controlling statute does not apply to A felonies. Defendant was charged with an A-II felony:

Defendant’s primary contention is that the waiver of indictment and SCI were jurisdictionally defective … . CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by [SCI] when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b]). To this end, the Court of Appeals has held that “when an accused is held for [g]rand [j]ury action upon a felony complaint that charges a class A felony, . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, defendant was held for grand jury action upon a felony complaint charging him with predatory sexual assault against a child, a class A-II felony that is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment … . Defendant’s waiver of indictment encompassed this charge and, thus, was expressly prohibited under CPL 195.10 and is invalid, “render[ing] the resulting procedure employed to procure defendant’s guilty plea unauthorized” … . People v Smith, 2023 NY Slip Op 06563, Third Dept 12-21-23

Practice Point: Defendants charged with a class A felony are not eligible, pursuant to CPL 195.10, to waive indictment and plead to a superior court information.

 

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