Opinion
February 10, 1999
Appeal from Judgment of Niagara County Court, Hannigan, J. — Grand Larceny, 2nd Degree.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of grand larceny in the second degree (Penal Law § 155.40) and sentencing her to a term of imprisonment of 4 to 12 years. Defendant contends that she was prosecuted by superior court information in violation of her right to be prosecuted by indictment.
Defendant validly waived her right to be prosecuted by indictment and consented to be prosecuted by superior court information (see, N.Y. Const., art. I, § 6; CPL art. 195; see generally, People v. Gould, 242 A.D.2d 583, 584; People v. McElrath, 241 A.D.2d 932). Defendant appeared with counsel before a Superior Court Judge, who was sitting as a local criminal court (see, CPL 10.30; 180.20 Crim. Proc. [2]). The court arraigned defendant on the felony complaint and elicited a waiver of her right to a preliminary hearing. Defendant was then held for the action of a Grand Jury (see, CPL 180.30), which is the prerequisite to defendant's waiving indictment (see, CPL 195.10 [a]). The court then properly elicited defendant's waiver of indictment in writing (see, CPL 195.10 [a], [b]; 195.20 Crim. Proc.).
Defendant's subsequent withdrawal of the guilty plea (for reasons not implicating the validity of the waiver of indictment) did not result in or require dismissal of the superior court information. By statute, a superior court information is the equivalent of an indictment (CPL 195.20 [d]; 200.15 Crim. Proc.). When a defendant withdraws a guilty plea entered on an indictment, the indictment is not deemed dismissed, but rather is "restored" (CPL 220.60). Therefore, a superior court information should not be deemed dismissed upon withdrawal of a guilty plea. There is no merit to defendant's contention that a superior court information may be used only as part of a plea bargain, not as a basis for trial (see, People v. Boston, 75 N.Y.2d 585, 588-589, quoting Mem. of State Exec. Dept., 1974 McKinney's Session Laws of NY, at 2006, 2007; Governor's Mem., id., at 2095; see also, CPL 200.20; 200.40 Crim. Proc. [2]; 200.70 Crim. Proc.).