Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense Which Was In the Indictment, or Any Lesser Included Offense

The Fourth Department determined the failure of the superior court information (SCI) to include the offenses in the indictment, or any lesser included offenses, required reversal of the defendant’s conviction:

The two counts charged in the SCI were not offenses for which defendant was held for action of a grand jury (see CPL 195.20), i.e., those two counts were not included in the felony complaint, and they were not lesser included offenses of an offense charged in the felony complaint … . “[T]he primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein” (CPL 180.10 [1]). Thus, ” the waiver procedure is triggered by the defendant being held for [g]rand [j]ury action on charges contained in a felony complaint . . . and it is in reference to those charges that its availability must be measured’ ” … . Inasmuch as the SCI to which defendant pleaded guilty did not “include at least one offense that was contained in the felony complaint,” it was jurisdictionally defective … . That defect does not require preservation, and it survives defendant’s waiver of the right to appeal and his guilty plea … . People v Tun Aung, 2014 NY Slip Op 03135, 4th Dept 5-2-14