Opinion
273 KA 15-01099.
03-31-2017
The PEOPLE of the State of New York, Respondent, v. Jacob MELVIN, Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty under an indictment of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). In appeal No. 2, defendant appeals from a judgment convicting him upon his pleas of guilty under a superior court information (SCI) of two counts of assault in the second degree (§ 120.05[7] ).
Preliminarily, the People correctly concede that defendant did not validly waive his right to appeal in a written waiver of the right to appeal, given the total absence of an oral colloquy on that subject (see People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 ). Nevertheless, we reject defendant's challenge to the severity of the sentence in appeal No. 1.
Defendant contends that the SCI in appeal No. 2 is jurisdictionally defective because it charged him with committing two assaults on December 3, 2014, even though he waived indictment only with respect to two assaults committed on December 23, 2014. Initially, we note that "[d]efendant's challenges to the jurisdictional requirements of the waiver of indictment and the superior court information need not be preserved for [appellate] review" and are not forfeited by the guilty plea (People v. Lugg, 108 A.D.3d 1074, 1074, 968 N.Y.S.2d 785 ; see People v. Boston, 75 N.Y.2d 585, 589 n., 555 N.Y.S.2d 27, 554 N.E.2d 64 ; People v. Jackson, 128 A.D.3d 1279, 1279, 9 N.Y.S.3d 739, lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 ). Here, defendant was initially charged by felony complaint with two counts of assault in the second degree committed on December 23, 2014, and defendant subsequently waived his right to indictment on those particular charges. The SCI, however, charged defendant with committing two acts of assault in the second degree on December 3, 2014, rather than December 23, 2014, and the special information attached to the SCI provided that the assaults occurred on December 23, 2014. During the plea colloquy, Supreme Court referenced both dates.
In our view, defendant never waived his constitutional right to indictment for any offenses taking place on December 3, 2014; rather, he waived his constitutional right to indictment for two assaults committed on December 23, 2014. Under these circumstances, as we recently explained in People v. Walker (Appeal No. 2), 148 A.D.3d 1570, ––––, ––– N.Y.S.3d ––––, the SCI is jurisdictionally defective and must be dismissed. We disagree with the People that the date-of-crime discrepancy here may be excused or overlooked as a ministerial typographical error. In our view, it is not "obvious" (People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804, reconsideration denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 ), nor is it "clear" (Jackson, 128 A.D.3d at 1279–1280, 9 N.Y.S.3d 739 ), that the date-of-crime discrepancy at issue here is in fact a mere typographical error (see e.g. People v. Siminions, 112 A.D.3d 974, 975, 977 N.Y.S.2d 91, lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 ). We therefore reverse the judgment in appeal No. 2, vacate the guilty pleas, dismiss the SCI, and remit the matter to Supreme Court for proceedings pursuant to CPL 470.45 (see People v. Mano, 121 A.D.3d 1593, 1593, 994 N.Y.S.2d 225, lv. dismissed 24 N.Y.3d 1121, 3 N.Y.S.3d 762, 27 N.E.3d 476 ; People v. Tun Aung, 117 A.D.3d 1492, 1492, 984 N.Y.S.2d 733 ).
In view of the foregoing, defendant's remaining contentions in appeal No. 2 are academic.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.