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Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint

The Second Department determined the superior court information to which defendant pled guilty after waiving indictment was jurisdictionally defective because it did not include at least one offense that was in the original felony complaint (or a lesser-included offense):

The defendant was charged, by felony complaint, with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), a class B felony. He waived indictment by a grand jury and pleaded guilty under a superior court information to attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1), a class C felony. As the defendant contends and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint … . Attempted criminal possession of a controlled substance in the third degree under Penal Law §§ 110.00 and 220.16(1) is not a lesser included offense of criminal possession of a controlled substance in the third degree under Penal Law § 220.16(12), because the former crime contains the element “with intent to sell” that is not an element of the latter crime (Penal Law § 220.16[1]; see CPL 1.20[37]…). Thus, it is clear that the superior court information upon which the defendant's plea was based did not “include at least one offense that was contained in the felony complaint” or a lesser-included offense of an offense charged in the felony complaint …, and the superior court information was jurisdictionally defective … . This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal … . People v Nemnon, 2014 NY Slip Op 08460, 2nd Dept 12-3-14

 

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