Opinion
980 KA 17–00612
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Marcus ST DENIS, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea and waiver of indictment are vacated, the superior court information is dismissed, and the matter is remitted to Supreme Court, Ontario County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05[7] ), defendant contends that his waiver of indictment is jurisdictionally defective because it does not contain the "approximate time" of the offense ( CPL 195.20 ). We agree. A jurisdictionally valid waiver of indictment must contain, inter alia, the "approximate time" of each offense charged in the superior court information (SCI) (id. ; see People v. Vaughn , 173 A.D.3d 1260, 1261, 102 N.Y.S.3d 751 [3d Dept. 2019] ; People v. Busch–Scardino, 166 A.D.3d 1314, 1315–1316, 88 N.Y.S.3d 294 [3d Dept. 2018] ; see also People v. Edwards , 171 A.D.3d 1402, 1403, 97 N.Y.S.3d 538 [3d Dept. 2019] ). That requirement is strictly enforced (see People v. Colon–Colon , 169 A.D.3d 187, 192, 92 N.Y.S.3d 520 [4th Dept. 2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 266, 124 N.E.3d 755 [2019] ). " ‘[S]ubstantial compliance will not be tolerated’ " ( id. at 191, 92 N.Y.S.3d 520 ). Here, the waiver of indictment does not contain the approximate time of the offense (see Vaughn , 173 A.D.3d at 1261, 102 N.Y.S.3d 751 ). Inasmuch as the SCI also does not contain that information, we need not consider whether to adopt the so-called "single document" rule ( Busch–Scardino , 166 A.D.3d at 1315, 88 N.Y.S.3d 294 ; see generally People v. Lamoni , 230 A.D.2d 628, 629, 645 N.Y.S.2d 480 [1st Dept. 1996], lv. denied 89 N.Y.2d 925, 654 N.Y.S.2d 727, 677 N.E.2d 299 [1996] ). We therefore reverse the judgment, vacate the plea and waiver of indictment, and dismiss the SCI (see Colon–Colon , 169 A.D.3d at 193–194, 92 N.Y.S.3d 520 ).