The People, Appellant,v.Jacob Milton, Respondent.

Brief

N.Y.March 20, 2013

To be argued by JESSICA L. ZELLNER (TIME REQUESTED: 20 MINUTES) (lhuirt L1f1JiLUth State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against JACOB MILTON, Defendant-Respondent. BRIEF FOR APPELLANT RICHARD A. BROWN District Attorney Queens County Attorney for Appellant. JOHN M. CASTELLANO JESSICA L. ZELLNER Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6102 Jonathan T. Latimer, Ill: Esq. 1080 Grand Avenue South Hempstead, New York 11550 July 3O,2012 Queens County Superior Court Information Number 1543/2008 1 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES . iii STATEMENT PURSUANT TO RULE 5531 CPRL .......................vi PRELIMINARY STATEMENT .......................................1' QUESTION PRESENTED ...........................................2 JURISDICTION .....................................................2 SUMMARY OF ARGUMENT .........................................3 FACTUAL AND LEGAL BACKGROUND ..............................10 THE APPEAL TO THE APPELLATE DIVISION .......................17 ARGUMENT THE APPELLATE DIVISION IMPROPERLY REVERSED DEFENDANT'S CONVICTION FOR GRAND LARCENY IN THE FIRST DEGREE AND IMPROPERLY DISMISSED THE SUPERIOR COURT INFORMATION ......................................21 A. The Statute Governing The Waiver of Indictments ..............22 B. Factual Variances Between An SCI And A Felony Complaint Are Permissible As Long As They Do Not Prejudice The.Defendant .................................25 C. Applying The Prejudice Standard Here, The SCI To Which Defendant Pled Guilty Was Not Jurisdictionally Defective ................................................30 CONCLUSION .....................................................46 i No I APPENDIX Order Granting Leave to Appeal dated May 23, 2012 ....................A-i Appellate Division's Decision and Order Reversing Judgment dated February 21, 2012 .......................................A-2 Criminal Court Complaint under Docket Number 2007QN05 7454 ..........A-4 Criminal Court Complaint under Docket Number 2007QN057455 ..........A-8 Superior Court Information Number 1543/2008 .......................A-14 Plea Minutes dated June 24, 2008 ....................................A-19 People's Affirmation in Opposition to Defendant's Motion to Withdraw Plea of Guilty ..............................................A-41 Court Decision dated June 16, 2009 .................................. A-55 Court Decision dated October 28, 2010 ..................................A-70 Certification Pursuant to Rule 2105 CPLR ............................. A-8 1 TABLE OF AUTHORITIES Page No. Cases Matter of New York State Assn. Of Criminal Defense Lawyers v. Kaye, 96N.Y.2d 512 (2001) ...........................................30 People v. Ahmed, 66 N.Y.2d 307 (1985) ............................... 24 People v. Alexander, 37 A.D.3d 908 (3d Dept. 2007) .....................39 People v. Ashe, 15 N.Y.3d 909 (1910) ..................................24 People v. Baldi, 54 N.Y.2d 137 (1981) ..................................19 People v. Bongarzone, 69 N.Y.2d 892 (1987) ...........................42 People v. Boston, 75 N.Y.2 585 (1990) ................................24 People v. Cahill, 2 N.Y.3d 14 (2003) ...................................42 People v. Clonick, 289 A.D.2d 1031 (4th Dept. 2001) ......................38 People v. Dallas, 58 A.D.3d 1019 (3d Dept. 2009) .......................38 People v. Fehr, 45 A.D.3d 920 (3dDept. 2007) .......................38-39 People v. Garson, 6 N.Y.3d 604 (2006) ..................................29 People v. Grega, 72 N.Y.2 489 (1988) ..................................31 People v. Guidice, 83 N.Y.2d 630 (1994) .................................35 People v. lannone, 45 N.Y.2d 589 (1978) ...............................31 People v. Jones, 37 A.D.3d 1111 (4th Dept. 2007) ........................39 111 People v. Keindi, 68 N.Y.2d 410(1986). 31 People v. Kent, 79 A.D.3d 52 (2d Dept. 2010) ...............................38 People v. Kinchen, 60 NY.2d 772 (1983) ............................9,44 People v. Lamm, 292 N.Y. 244 (1944) ........... .......................36 People v. Menchetti, 76 N.Y.2d 473 (1990) ..........................24, 25 People v. Milczakowskyj, 73 A.D.3d 1453 (4th Dept. 2010) ................38 People v. Milton, 92 A.D.3d 899 (2d Dept. 2012) .........................20 People v. Morris, 61 N.Y.2d 290 (1984) .................................31 People v. Ogunmekan, A.D.3d 1 2012 N.Y. App. Div. LEXIS 4007 (1St Dept. 2012) ............................................38 People v. Olivo, 52 N.Y.2d 309 (1981) ...............................9, 44 People v. Parrilla, 285 A.D.2d 157 (1st Dept. 2001) .......................39 People v. Patterson,. 39 N.Y.2d 288 (1976) ..............................24 People v. Pierce, 14N.Y.3d 564 (2010) ..........................24, 25, 44 People v. Prince, 273 N.Y. 90 (1937) ...............................37-38 People v. Rivera, 84 N.Y.2d 766 (1995) ............................. 31, 34 People v. Santi, 3 N.Y.3d 234 (2004) ..................................29 People v. Spann, 56 N.Y.2d 469(1982) ...................................36 People v. Starks, 91 A.D.3d 975 (2d Dept. 2012) .........................38 lv People v. Stanley, 23 A.D.3d 683 (3d Dept. 2005). 38 People v. Straniero, 17 A.D.3d 161 (1St Dept. 2005) ...................... 39 People v. Truelock, 88 N.Y.2d 546 (1996) ..............................25 People v. Zanghi, 79N.Y.2d 815 (1991) .........................24,25,42 Strickland v. Washington, 466 U.S. 668 (1984) ..........................19 Statutes C.P.L. 100.15....................................................26 C.P.L. §'155.42 .....................................................40 C.P.L. § 195.20 .................................................6, 25 C.P.L. § 200.15 ................................................20,27 C.P.L. § 200.50 ....................................................27 C.P.L. § 200.70 ................................................passim Other Authorities Mem. of State Executive Chamber, 1974, filed with Senate Bill Number 10414-A .....................................23 Mem., Governor's Program Bill 1974 ....................................23 Letter from County Judges' Association of the State of New York to Counsel to the Governor, May 27, 1974 ........................23 ki I COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against - JACOB MILTON, Defendant-Respondent. ------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Superior Court Information Number of the case is 1543/2008 (Queens County). 2. The full names of the parties are the People of the State of New York against Jacob Milton. 3. This action was commenced in the Supreme Court, Queens County. 4. This is an appeal from an order dated February 21, 2012. 5. The appendix method of appeal is being used. VI I COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- JACOB MILTON, Defendant-Respondent. -----------------------------------------------------x BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, the People appeal from a February 21, 2012, decision and order of the Appellate Division, Second Department. By that order, the Appellate Division reversed defendant's October 28, 2010 conviction for Grand Larceny in the First Degree (Penal Law § 155.42), dismissed the Superior Court Information ("SCI"), and remitted the case to the Supreme Court. At the time of the Appellate Division's order, defendant was . incarcerated. Defendant is currently out on bail. II QUESTION PRESENTED The Criminal Procedure Law requires that a Superior Court Information ("SCI") contain at least one charge from a corresponding felony complaint, but does not address the degree to which the factual allegations in the SCI may vary from the complaint. The Criminal Procedure Law also explicitly grants courts and prosecutors wide authority to alter the factual allegations of an SCI by amendment, absent prejudice to the defense. Here, the SCI to which defendant pled guilty reflected two of the charges in the referenced felony complaint, but narrowed the time frame previously alleged and, as to one of the counts in the SCI alleging a complex mortgage fraud transaction, named the banks and "others" as complainants rather than specifically naming the individuals reflected in the felony complaint. Did the factual variations between the SCI and the felony complaint transform the nature of the charges in the felony complaint such that the SCI was I jurisdictionally defective, considering that the differences were minor, the SCI could have been amended to reflect the variations in any event, and there was no prejudice to the defense? JURISDICTION Upon the issuance of an order granting leave to appeal by Judge Victoria A. Graffeo, dated May 23, 2012, this Court has jurisdiction under section 450.90(1) 2 In U of the Criminal Procedure Law to hear this appeal from the order of the Appellate Division insofar as it reversed defendant's conviction for Grand Larceny in the First Degree and dismissed the SCI. SUMMARY OF ARGUMENT The instrument to which defendant pled guilty wasjurisdictionally valid. Contrary to the Appellate Division decision, the SCI reflected charges in the felony complaint to which the SCI corresponded, with limited permissible factual variations. Judged by the proper standard under the Criminal Procedure law, those minimal variances did not render the SCI jurisdictionally defective, because the variances were minor refinements, consistent with the original felony complaint, because the SCI here unquestionably could have been amended to reflect those variances, and because there was no prejudice to the defense. Criminal Procedure Law Section 200.15 provides that a defendant may waive indictment, and the "offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith. . ." Criminal Procedure Law Section 200.70, however, which addresses the amendment of indictments and SCIs, sets forth the standard for permissible factual variances. Pursuant to this statute, indictments may be amended as long as the "amendment does not change the theory or theories of the prosecution 3 as reflected in the evidence before the grand jury. . . or otherwise tend to prejudice the defendant on the merits." C.P.L. § 200.70(1). Such amendments may include "matters of form, time, place, names of persons and the like. . ." C.P.L. § 200.70(1). The standard applicable to the amendment of SCIs is broader than the standard applicable to the amendment of indictments. With respect to the amendment of SCIs, the statute provides that SCIs may be amended "when [the amendment] does not tend to prejudice the defendant on the merits." C.P.L. § 200.70(1). Although the statute does not define what "prejudice" to a defendant means, it should be interpreted in light of the fundamental jurisdictional purposes of accusatory instruments - to P rovide notice to the defendant of the charges against him and to indicate with sufficient specificity the charges against defendant so as to prevent the retrial of defendant on those same charges. In addition, as to both amendments made to indictments and SCIs, the statute states that amendments cannot be made to cure a "failure . . . to charge or state an offense," to cure a "[l]egal insufficiency of the factual allegations," to cure a "misjoinder of offenses," or to cure a "misj binder of defendants." C.P.L. § 200.70(2)(a)-(d). The application of the standard set forth in the amendment statute to determine the validity of SCIs that vary factually from their corresponding felony complaints makes sense for three reasons. First, it is clear, by its enactment of C.P.L. 4 § 200.70, that the legislature approved of the idea that an SCI can vary factually from a felony complaint in significant respects so long as no prejudice to defendant occurs. Indeed, the Criminal Procedure Law imposes different factual requirements on felony complaints and indictments, and the amendment statute provides a common sense, convenient standard for determining when factual variances between those instruments are so serious as to render the SCI jurisdictionally defective such that even a voluntary plea to the instrument, such as defendant's here, would have to be vacated. Second, if the prejudice test from section 200.70 did not apply, prosecutors would be required to engage in a completely sterile exercise to achieve precisely the same result that section 200.70 allows. Absent application of the prejudice test to an initial SCI, prosecutors would be required to file an SCI that exactly mirrored the felony complaint in all respects but would then be allowed to immediately file an amended SCI that could incorporate any changes that pass muster under the prejudice test. This procedure would merely exalt form over substance and surely was not what the legislature intended. Third, the application of the standard in the amendment statute to I. evaluating factual variances in SCIs supports the legislative intent and public policy I considerations underlying waivers of indictment. Allowing minor factual variations 5 II •1 as long as they do not prejudice the defendant ensures that the defendant's allocution and plea are truthful, since the SCI, as compared to the felony complaint, will more accurately reflect the facts of the case. Moreover, allowing the SCI to contain factual variances from the felony complaint, without requiring the People to first file an SCI and then amend it, supports the legislature's intent when it enacted Criminal Procedure Law Section 195.20 - to expedite the felony charging process. For all of these reasons, the standard enunciated by the amendment statute should be applied in these cases. The application of this "prejudice" standard to the evaluation of the SCI in relation to the felony complaint is also appropriate because the standard supports the jurisdictional prerequisites of an accusatory instrument - specifically, to ensure that the defendant is provided with fair notice of the accusations levied against him, so that he will be able to. prepare a defense, and to indicate with sufficient specificity what crime or crimes defendant is charged with, in order to avoid subsequent attempts to retry him for the same crime or crimes. Applying the prejudice standard to the case at bar, it is clear that the SCI to which defendant pled guilty was not jurisdictionally defective. Defendant was initially charged in one felony complaint with having committed Grand Larceny in the First Degree and Scheme to Defraud in the First Degree among numerous other I ii crimes, between April 1, 2006 and mid-October 2007, by engaging in a complex mortgage fraud transaction with respect to four individuals. Defendant was also charged in a second felony complaint with Grand Larceny in the Third Degree and Scheme to Defraud in the First Degree, among numerous other crimes, between March 1, 2007 and mid-October 2007, with regard to the use of the specified victims' identities to obtain charge accounts. The SCI to which defendant pled guilty specifically referenced by number the first felony complaint involving the mortgage fraud and charged both the first-degree grand larceny charge and the first-degree scheme to defraud from that complaint. The time period in the two counts was narrowed from 18 months to seven months, and, under the first-degree grand larceny count, the complainants were listed, at defendant's request, as "Indy Mac Bank," "WMC Bank," as well as "others." The second felony complaint with regard to the credit card account transactions was II dismissed as covered by the plea to the first felony complaint. Thus, the only differences between the SCI to which defendant pled guilty and the original felony complaint charging .Grand Larceny in the First Degree and Scheme to Defraud in the First Degree were the shortened time period in the SCI - from 18 months to approximately seven months - and different complainants. The SC! charged defendant with the same offenses as he was charged with in the felony VA II I complaint and neither of these minor factual variances changed the crimes contained in that instrument. Indeed, applying the standard set. forth in the amendment statute, defendant was not prejudiced by these factual variations. First, defendant had full notice of the charges against him listed in the SCI, as they were the same as those charged in the felony complaint, and defendant has never alleged that any defenses he may have had changed as a result of the factual variations between the complaint and the SCI. Moreover, it was at defendant's request that the change in the name of the complainants was made, leaving defendant in a wholly untenable position to argue prejudice regarding this factual variation. Second, the charges in the SCI were specific and clearly linked to the relevant felony complaint for double jeopardy purposes, precluding defendant's re-prosecution for the same offense. In addition, the variations were not made to cure a failure to charge or state an offense, to cure a legal insufficiency of the factual allegations, to cure a misjoinder of offenses, or to cure a misjoinder of defendants. The variations were fully permissible then, under the standard for SCIs promulgated by the Legislature in section 200.70. Even if this Court were to apply the standard for amending indictments to the evaluation of the factual differences between the SCI and the felony complaint in this case, the outcome would be the same. The factual variances did not change 8 the theory of the case - that defendant appropriated personal information from individual people in order to obtain mortgages with a value of over $1 million. The identification of the banks as complainants was appropriate because they were the entities who lent the money to obtain the mortgages. Thus, the naming of the two banks did not change the theory of the case. In any event, naming "others" as complainants maintained a sufficient consistency between the two instruments, particularly considering that the felony complaint was specifically referenced in the SCI and any ambiguity as to individuals or transactions covered could be resolved by resorting to that document. To the extent that the Appellate Division assumed otherwise and found that the SCI alleged different transactions than those charged in the felony complaint, the. Appellate Division was wrong because the SCI and the felony complaint were clearly linked, both by a direct reference to the felony complaint by complaint number and by the same charged offenses of Grand Larceny in the First Degree and Scheme to Defraud in the First Degree. Moreover, to the extent the Appellate Division assumed different transactions were at issue, it failed to place the appropriate burden on defendant to establish an adequate record. People v. Kinchen, 60 N.Y.2d 772 (1983) (sufficient factual record necessary for appellate review); People v. Olivo, 52 N.Y.2d 309, 320 (198 1) (holding that it is defendant's obligation to "prepare aproper -U record"). Here, defendant did not make a sufficient record below to establish that the transactions referenced in the SCI constituted different transactions from the ones in the felony complaint. Accordingly, the Appellate Division's order reversing the conviction and dismissing the SCI should itself be reversed and the SCI reinstated. FACTUAL AND LEGAL BACKGROUND Between April 2006 and mid-October 2007, defendant met with four mortgage loan applicants inside of his offices at Griffin Mortgage Company, a company run by John Messer, located at 72-32 Broadway, in Queens County. At these meetings, defendant asked for, and received, personal identifying information from these individuals, including names, dates of birth, Social Security numbers, and other information, in order to apply for mortgages. Following these meetings, the individuals discovered that their addresses on credit reports had been changed without their permission and that mortgages, in total exceeding $1 million, had been procured in their names without their permission. For these acts, on October 15,2007, defendant was arrested and charged, under Docket Number 2007QN05 7454, with having committed the following crimes I between April 1, 2006 and mid-October 2007: Grand Larceny in the First Degree 10 (P.L. § 155.42), two counts of Grand Larceny in the Second Degree (P.L., § 155.40[ fl), three counts of Criminal Possession of a Forged Instrument in the Second Degree (P.L. § 170.25), six counts of Identity Theft in the First Degree (P.L. § 190.80[1], [2], and [3]), five counts of Falsifying Business Records in the First Degree (P.L. § 175.10), two counts of Scheme to Defraud in the First Degree(P.L §§ 190.65 [1] [a], [1] [b]), three counts of Criminal Impersonation in the Second Degree (P.L. § 190.25[1]), three counts of Identity Theft in the Third Degree (P.L. § 190.78[1]), three counts of Unlawful Possession of Personal Identification Information in the Third Degree (P.L. § 190.81), and Attempted Grand Larceny in the Second Degree (P.L. § 1 10/155.40[l]) (A: 4-7). Also, between March 2007 and mid-October 2007, defendant met with an additional four mortgage loan applicants inside of his offices at Griffin Mortgage. At these meetings, defendant asked for, and received, personal identifying information from these individuals, including names, dates of birth, Social Security numbers, and other information, in order to apply for mortgages. Following these meetings, the individuals discovered from credit reports that their addresses had been changed, that credit card accounts had been opened in their names at various stores without their knowledge, and that purchases had been made on these credit cards without their knowledge. 11 I I j -Il For these acts, defendant was charged, in a second felony complaint, under Docket Number 2007QN057455, with having committed the following crimes between March 1, 2007 and mid-October 2007: three counts of Grand Larceny in the Third Degree (P.L. § 155.35), two counts of Criminal Possession of a Forged Instrument in the Second Degree (P.L. § 170.25), nine counts of Identity Theft in the First Degree (P.L. § 190.80[1], [2], and [3]), five counts of Grand Larceny in the Fourth Degree (P.L. § 155.30[1]), ten counts of Falsifying Business Records in the First Degree (P.L. § 175.10), two counts of Scheme to Defraud in the First Degree (P.L. § 190.65[1][a], [1][b]), twelve counts of Identity Theft in the Second Degree (P.L. § 190.79[1], [2], and [3]), six counts of Identity Theft in the Third Degree (P.L. §l90.78[1], [2]) and four counts of Unlawful Possession of Personal Identification Information in the Third Degree (P.L. § 190.81) (A: 8-13).' Between the time of his arrest and June 24, 2008, when he pled guilty, defendant met with the Queens County District Attorney's Office and other law enforcement agencies to discuss the possibility of entering into a cooperation agreement. Defendant's co-defendant, Shamsun Nira, was also arrested and charged with the same crimes. On June 24, 2008, Nira pled guilty to Scheme to Defraud in the Second Degree (P.L. § 190.60). On November 9, 2010, the court sentenced Ms. Nira to a fine of $250. On September 15, 2011, the Appellate Term dismissed her appeal. 12 I 0 On June 24, 2008, defendant signed a cooperation agreement ("Agreement") and the prosecutor asked the court to allow defendant to plead guilty under an SCI to one count of Grand Larceny in the First Degree and one count of Scheme to Defraud in the First Degree with a promise of an open sentence not to exceed two to six years, subject to the approval of the court. It was agreed that the SCI would incorporate Docket Number 2007QN057454, involving the actual mortgage loans, and that Docket Number 2007QN057455, involving the credit cards accounts, would be dismissed (A: 21, 25 -27). 2 The Agreement further provided that based on the extent of defendant's cooperation, the People might recommend a lesser sentence, and might allow defendant to withdraw his plea to Grand Larceny in the First Degree and let stand his plea to Scheme To Defraud in the First Degree, with a recommendation of five years' probation and a $5000 fine, or else might allow defendant to replead to a lesser charge. The Agreement stated that if defendant were permitted to plead to a lesser charge, the People, based on the nature and extent of defendant's cooperation, might recommend any sentence allowed by law. The Agreement also stipulated that if defendant violated the Agreement in any manner, as determined by the People, the People would recommend a sentence 2 The court sealed the record on June 24, 2008, the day that defendant pled guilty. Defendant also faced a misdemeanor charge of Tampering with a Witness in the Fourth Degree (P.L. § 215.10 {a}) in another court, under Docket Number 2007QN056692. This charge was also dismissed as covered by the plea to the first felony complaint. 13 11 of four to twelve years. Under the terms of the Agreement, if defendant failed to appear in court, was rearrested, or undermined any ongoing investigation, as determined solely by the People, the People might withdraw their previous promised sentence and recommend any sentence permissible by law, including a maximum permissible sentence of 8 1/3 to 25 years. Before defendant pled guilty, he signed a waiver of his right to appeal. The SCI initially filed charged that defendant had committed Grand Larceny in the First Degree (P.L. § 155.42) - a charge contained in the felony complaint under Docket 2007QN05 7454 - with four individuals named as complainants. This SCI also charged that defendant had committed the crime of Scheme to Defraud in the First Degree (P.L. § 190.65[1][a]). The SCI alleged that both crimes occurred on or about, and between, March 1, 2007 and October 15, 2007. When the court began the allocution, defendant refused to plead guilty to the crimes charged with respect to the four named complainants. The court recessed the case and defendant, his attorney, and the prosecutor went into the hallway to discuss the plea. Defendant told the prosecutor that he would plead guilty to the SCI with Indy Mac Bank and WMC Bank as complainants (A: 44, 59-60, 78). The two banks that were named in the SCJ, Indy Mac Bank and WMC Bank, were 14 1 ii two banks which provided the mortgages which were obtained using the individuals' credit. As a result, the prosecutor revised the SCI. The SCI to which defendant pled guilty charged the following crimes: Grand Larceny in the First Degree (P.L. § 155.42) and Scheme to Defraud in the First Degree (P .L. § 190.65 { 1] {a]), specifically referencing, by complaint number, the first felony complaint involving the mortgage loans obtained without the victims' knowledge. As to the grand larceny charge, the SCI alleged that the defendant, acting in concert with others, on or about and between March 1, 2007 and October 15, 2007, in the County of Queens, "stole certain property whose value exceeds one million dollars, to wit: a sum of United States currency from Indy Mac Bank and WMC Bank and others." As to the scheme to defraud charge, the SCI alleged that defendant, acting in concert with others, on or about and between March 1, 2007 and October 15, 2007, in the County of Queens, "engaged in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons and to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtained property from one or more of such persons, to wit: a sum of United States currency" (A: 14-18). Defendant then pled guilty and, as agreed, Docket Number 2007QN057455 was dismissed as covered by the SCI, which specifically referenced Docket Number 2007QN057454 (A: 31, 33, 40). 15 'I I I Between June 24, 2008, and June 16, 2009, the Queens County District Attorney's Office and other law enforcement agencies, including special agents from the Securities and Exchange Commission, the FBI, and the United States' Attorney's Office, met with defendant in an attempt to work with him pursuant to the terms of the Agreement. These agencies found defendant incredible and declined to pursue an investigation based on information that defendant provided to them. Although defendant claimed to be able to identify other individuals involved with mortgage fraud, further investigation revealed that the fraud was, in fact, perpetrated by defendant alone. On March 5, 2009, defendant, through a new attorney, moved to withdraw his plea, claiming that it was not made knowingly or voluntarily, and filed a supplemental motion on April 27, 2009. The People filed a written response. On June 16, 2009, the court denied defendant's motion in its entirety and remanded defendant. On April 13, 2010, defendant moved to renew and reargue his motion to withdraw his plea, or, alternatively, asked the court to credit his cooperation with the People and to vacate his plea to first-degree grand larceny and to sentence him to time served on his plea to first-degree scheme to defraud. Defendant requested a hearing if the court was unwilling to grant his motion. 16 I. I! The court granted defendant's request and held a hearing to determine whether defendant had fulfilled the terms of the Agreement. The People and defendant presented evidence and arguments to the court for its consideration. On October 28, 2010, the court denied defendant's motion, finding that defendant had not provided complete or credible information to the People, violating the terms of the Agreement. The People recommended a sentence of four to twelve years. Defendant asked for 364 days. The court sentenced defendant to two to six years' incarceration on the grand larceny charge and, with the consent of the People, vacated his scheme to defraud plea. THE APPEAL TO THE APPELLATE DIVISION In his appeal to the Appellate Division, defendant raised numerous claims. First, defendant claimed that his plea allocution was insufficient and that his plea was not knowingly, voluntarily, or intelligently made. Second, defendant claimed that his waiver of right to appeal was not valid. Third, defendant claimed that he was confused and did not understand the terms of the Agreement. Fourth, defendant alleged that he was coerced by his attorney or the prosecutor to plead guilty. Fifth, defendant contended that the court erred in denying his motions to withdraw his plea. Sixth, defendant claimed that the SCI was jurisdictionally defective. Seventh, defendant alleged that he received the ineffective assistance of 17 I counsel because his attorney did not properly inform him of the potential immigration consequences of his plea, thereby putting him at risk for deportation, among other immigration consequences. Eighth, defendant claimed that the court failed to specifically perform and that it improperly sentenced him. Ninth, defendant claimed that the court, by failing to hold an - evidentiary hearing to determine whether or not he complied with the terms of the Agreement, violated his due process rights. In response to defendant's claims, the People argued that defendant's I waiver of the right to appeal was made knowingly and voluntarily and was proper in all respects. The People contended that, as a result, defendant both waived and forfeited his claims that his plea allocution was insufficient and that the terms of the Agreement were unclear. The People further argued that the record demonstrated that defendant's plea was knowingly, voluntarily, and intelligently entered. In addition, the People argued that defendant's claims that he did not understand the terms of the Agreement, that he was confused, and that he was coerced by his attorney and the prosecutor were belied by the record. Next, the People argued that the court properly denied defendant's motions to withdraw his plea. The People also argued that the SCI to which defendant pled guilty was jurisdictionallysound, as it contained the same crimes as those charged in the felony complaints. Moreover, the People noted that it was 18 defendant who provided the names of the two banks and that the inclusion of "others" encompassed the complainanis who were not initially named in the first SCI but who were also named in the felony complaints. The People further argued that defendant's ineffective-assistance-of-counsel claim should not be reviewed on direct appeal since his claim was based on matters outside the record. To the extent that defendant's claim was on the record, the People argued that defendant could not satisfy the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984) and People v Baldi, 54 N.Y.2d 137 (1981), and that the record, in any event, established not only that both the court and his attorney informed defendant of the possible immigration consequences of his plea, but the record also demonstrated that defendant was satisfied with his attorney's representation. Additionally, the People argued that defendant's sentence was proper, because, despite defendant having failed to comply with the terms of the Agreement, the court sentenced defendant to two to six years' incarceration - the maximum defendant faced if he had complied with the terms of the Agreement. The People argued that the court not only granted specific performance of the Agreement, by giving defendant the sentence that he bargained for, but also that defendant gained an additional benefit when the court, with the consent of the People and defendant, vacated defendant's scheme to defraud conviction, leaving defendant with only one 19 II felony conviction. Finally, the People argued that the hearing that the court conducted in order to determine whether or not defendant violated the Agreement was proper and did not violate defendant's due process rights. Thus, the People argued, the Appellate Division should reject defendant's claims and affirm his judgment of conviction. In a decision and order dated February 21, 2012, the Appellate Division reversed the judgment, dismissed the SCI, and remitted the case to the Supreme Court. People v. Milton, 92 A.D.3d 899 (2012) (A: 2-3). The Appellate Division found that the first-degree grand larceny count in the SCI violated C.P.L. § 200.15, I whichrequires that crimes charged in an SCI be the same, or lesser-included, offenses as the crimes charged in the felony complaint, or offenses properly joinable with the offenses in the felony complaint. The court found the SCI jurisdictionally defective because the designation of the alleged victims in the SCI differed from those named in the felony complaint charging Grand Larceny in the First Degree. On May 23, 2012, the Honorable Victoria A. Graffeo granted the People leave to appeal to this Court from the decision of the Appellate Division (A: 1). 20 I II Ii ARGUMENT THE APPELLATE DIVISION IMPROPERLY REVERSED DEFENDANT'S CONVICTION FOR GRAND LARCENY IN THE FIRST DEGREE AND IMPROPERLY DISMISSED THE SUPERIOR COURT INFORMATION The Appellate Division erred in reversing defendant's judgment of conviction and dismissing the SCI to which he pled guilty on the ground that none of the counts in the SCI were previously charged in a corresponding felony complaint. Contrary to the Appellate Division's conclusion, both charges in the SCI were previously charged in a specific felony complaint referenced in the SCI, with limited permissible factual variations. Indeed, the only differences between the SCI charges and the felony complaint were that the SCI narrowed the time frame for the offenses and, as to one count involving a complex mortgage fraud, substituted, at the request of the defendant, the names of the banks involved as complainants rather than individuals. Because the factual differences were minor, because the SCI could unquestionably have been amended immediately upon filing to reflect these same changes, and because no prejudice accrued to the defense, the differences between the SCI and the felony complaint did not change the nature of the charge previously alleged so as to render the SCI jurisdictionally defective. Accordingly, the Appellate Division order reversing the conviction and dismissing the accusatory instrument 21 I should be reversed, and the conviction and the SCI reinstated. A. The Statute Governing The Waiver of Indictments. Article I, Section Six of the New York State Constitution provides that "no person shall be held to answer for a capital or otherwise infamous crime unless on indictment of a grand jury. . ." In 1974, the legislature amended Article I, Section Six of the New York State constitution, to provide a single exception to the constitutional requirement that a person charged with a felony offense be prosecuted by indictment. The amendment to Section Six of the Constitution provides that "a person held for the action of a grand jury upon a charge for [an infamous crime], other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by-the district attorney; such waiver shall be evidenced by written instrument, signed by the defendant in open court in the presence of his or her counsel." The New York State legislature enacted Criminal Procedure Law Section 195 in order to implement this constitutional amendment allowing for the waiver of indictment and prosecution by an accusatory instrument known as an SCI. Section 200.15 of the Criminal Procedure Law defines a superior court information, or SCI, as a written accusation that "may include any offense for which the defendant was 22 to Ii held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to section 200.20 and 200.40, but shall not include an offense not named in the written waiver or indictment executed pursuant to section 195.20." The statute further provides that a "superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided." Section 195.20 of the Criminal Procedure Law provides that a defendant may waive indictment, and that the "offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith. . ." In enacting the statute, the legislature explained that the purpose of both the constitutional amendment and implementing statute was: to allow a defendant who wishes to go directly to trial without waiting Ii for a grand jury to hand up an indictment to do so, and thereby obtain a speedier trial. This procedure will also reduce the workload of our overburdened grand juries and reduce the backlog of cases awaiting grand jury action. With fewer matters to handle, grand juries will be permitted to give more time and consideration to those cases which require their attention. (Mem. of State Executive Chamber, 1974, filed with Senate Bill Number 10414-A; see also Mem., Governor's Program Bill 1974; Letter from County Judges' Association of the State of New York to Counsel to the Governor, May 27, 1974). 23 II I Since the enactment of Criminal Procedure Law Article 195, this Court has recognized that SCIs also serve the purpose of streamlining the felony charging process by sparing the State the time and expense of unnecessary grand jury proceedings. People v. Pierce, 14 N.Y.3d 564, 569 (2010); People v. Menchetti, 76 N.Y.2d 473, 476 (1990). The consequences of failing to adhere to C.P.L. § 195.20 are severe. This Court has held that such a failure is jurisdictional, affecting "the organization of the court or the mode Of proceedings prescribed by law." People v. Boston, 75 N.Y.2d 585 (1990); People v. Ahmed, 66 N.Y.2d 307 (1985); People v. Patterson, 39 N.Y.2d 288 (1976). As such, a defendant need not preserve a claim about the validity of an SCI, and, as a result, even defendants who have validly consented to the SCI at the time of the plea, may later challenge the SCI' as jurisdictionally defective. Menchetti, 76 N.Y.2d at 475. If the SCI is found jurisdictionally defective, the plea will be vacated. Boston, 75 N.Y.2d at 589. Since the statute's enactment, this Court, in evaluating whether or not an SCI is jurisdictionally sound, has found that SCIs that charge defendants with higher degree crimes than those charged in the felony complaints are jurisdictionally defective. People v. Zanghi, 79 N.Y.2d 815 (1991); People v. Ashe, 15 N.Y.3d 909 (2010). This Court has also held that when a defendant is held for grand jury action 24 upon a felony complaint that charges a Class A felony, a waiver of indictment with respect to that felony complaint is unauthorized. People v. Truelock, 88 N.Y.2d 546 (1996). This Court has also held that an SCI that contains a lesser-included offense of one charged in the felony complaint complies with C.P.L. § 195.20. Pierce, 14 N.Y.3d at 568; Menchetti, 76 N.Y.2d at 477 (noting that nothing in Article 1, Section 6 mandates that the SCI charge each and every offense in the felony complaint). In addition, this Court has recognized that an SCI is jurisdictionally sound where the offenses charged in the SCI are "properly joinable" to the offenses charged in the felony complaint and in such a case, the SCI must, at a minimum, also include at least one offense that was contained in the felony complaint. Zanghi, 79 N.Y.2d at 817-8; Pierce, 14 N.Y.3d at 573-74 (explaining that offenses will not be deemed sufficiently similar to support joinder if the offenses do not share any elements and the criminal conduct at the heart of each crime is not comparable). B. Factual Variations Between An SCI And A Felony Complaint Are Permissible As Long As The y Do Not Prejudice The Defendant. Factual variations between a charge contained in an SCI and a corresponding charge in a felony complaint are permissible under the Criminal Procedure Law so long as they do not prejudice the defense. Section 195.20, cited by the Appellate Division below, requires that the same offense, a lesser-included 25 I I offense, or a joinable offense be charged in the SCI, but does not address the acceptable level of factual variation between offenses charged in both the SCI and the felony èomplaint, the question at issue here., The Legislature has provided guidance, however, on this issue in section 200.70, which freely authorizes factual amendments to an SCI so long as no prejudice accrues to the defendant. This Court should apply this standard to assess factual variations between an SCI and a complaint, both because section 20030 signals the Legislature's acceptance of factual variations that satisfy this standard and because failing to do so would mandate a meaningless exercise in which prosecutors would be required to file SCIs mimicking felony complaints and then amend them in the next breath. The Legislature, which sought through SCIs to streamline the felony charging process, could not have intended such a sterile and wasteful exercise. As an initial matter, there is no question that under the statutory scheme envisioned by the Legislature, factual allegations in an SCI will often vary to some degree from those in a felony complaint. Indeed, the factual requirements that the Legislature imposed for an SCI vary significantly from those required for a felony complaint. A felony complaint must contain specific factual allegations of an evidentiary character supporting the charges, and the allegations are contained in a single factual narrative for all charges. See C.P.L. § 100.15(3). An SCI, like an PRI I I indictment, contains less detailed information about the crime, does not require allegations of an evidentiary character, and factual allegations are made on a count- by-count basis. C.P.L. § 200.50(7). Moreover, the factual allegations in an SCI will often reflect information that is corrected or otherwise more accurate or up to date than those in the felony complaint. Where further information is obtained after the filing of the felony complaint concerning a non-essential fact, often based upon information provided by a defendant who has agreed to take a plea to an SCI, the SCI will reflect that new or additional information, to the extent relevant to the existing charges. Thus, consistent with its nature and purposes, an SCI will ordinarily contain factual allegations that differ in at least some respects with those in a felony complaint, and may also contained updated information that does not itself change the charged crimes. The acceptable degree of variation between a felony complaint and an Sd, however, was not directly addressed by the Legislature in sections 200.15 or 195.20. As noted above, those sections are silent of the issue of what factual variations between the SCI and the corresponding felony complaint are permissible. But Criminal Procedure Law section 200.70, which addresses permissible factual amendments of SCIs and indictments, provides considerable guidance on this issue, including a common sense standard that this Court should adopt in judgingfactual 27 I variations between an SCI and a felony complaint. Under section 200.70, at any time before or during trial, a court may "order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits." C.P.L. § 200.70(1). Where the accusatory instrument is a superior court information, such an amendment may be made when it does not "tend to prejudice the defendant on the merits." C.P.L. § 200.70(1). This is a less burdensome standard than that articulated for the amendment of indictments. The statute further states that neither an indictment nor an SCI may be amended for the purpose of curing a "failure thereof to charge or state an offense," of curing a "[ijegal insufficiency of the factual allegations," of curing "[a] misjoinder of offenses," or of curing "[a] misjoinder of defendants." C.P.L. § 200.70(2)(a)-(d). This standard should be applied to factual variations between an SCI and a felony complaint for at least two reasons. First, the application of this "prejudice" standard to the evaluation of the SCI in relation to the felony complaint is appropriate because section 200.70 signals that the Legislature has accepted factual variations in 28 an SCI, different from those that might have been contained in the corresponding felony complaint, as long as they pass the prejudice test. Indeed, by enacting section 200.70, the Legislature has authorized alterations in an SCI that , reflect new, additional, or different facts so long as the defense is not prejudiced, even where the felony complaint may have charged something different. Since the Legislature provided that Offenses in the SCI could be freely altered to reach this result, there is no reason to believe that the Legislature sought to prohibit factual variations in an original SCI that do precisely the same thing. Second, declining to adopt the standard in section 200.70 would lead to I a result directly contrary to the purposes underlying the Legislature's adoption of the SCI procedure. If the standard for amendments were not adopted, prosecutors who obtain new or more accurate information would be required to file SCIs that reflect the old, outdated, or incorrect information, and, then, in the next moment, amend the SCI to reflect the true facts. This would be, to say the least, an entirely unreasonable and sterile exercise. See People v. Garson, 6 N.Y.3d 604, 614 (2006); People v. Santi, 3 N.Y.3d 234, 242 (2004) (courts "will not blindly apply the words of a statute to arrive at an unreasonable or absurd result") (internal citations omitted). Moreover, given the purpose of the SCI procedure - to streamline the felony charging process and assist in disposing of felony charges - the Legislature could not have envisioned 29 such an unnecessary and wasteful procedure. See Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 N.Y.2d 512, 519 (2001) ("courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives") In short, adopting the prejudice test of section 200.70 to assess the permissible level of variation between an SCI and an indictment has the beneficial effects of avoiding wholly unnecessary proceedings, promoting the purposes and objectives of the SCI procedure, and doing both consistently with the Legislature's understanding of what factual variations are acceptable in an SCI. Moreover, neither defendant nor the Court below has proposed any other standard to assess factual variations between and SCI and a felony complaint, much less one that would be more in line with the Legislature's intent. Using the prejudice test to evaluate the changes here, there is no question that the variations at issue were permissible. C. Applying The Prejudice Standard Here, The SCI To Which Defendant Pled Guilty Was Not Jurisdictionally Defective. Applying this prejudice standard to the facts of this case, the SCI to which defendant pled guilty was not jurisdictionally defective. Although the SCI contained factual variances from the felony complaint - a shorter time period for the charged offenses and different complainants than those named in the felony complaint - these variances did not prejudice defendant on the merits. 30 While the statute does not define what it means by "prejudic[ing] defendant on the merits" and, in fact, this Court has not had the occasion to address this question, it makes sense to define what constitutes "prejudice" in light of the jurisdictional functions of an SCI. It is well settled that the fundamental functions of an indictment are: (1) to provide the defendant with fair notice of the accusations levied against him, so that he will be able to prepare a defense; (2) to provide a means of ensuring that the crime for which defendant is brought to trial is one for which he was indicted by the Grand Jury; and (3) to indicate with sufficient specificity what crime or crimes defendant is charged with, in order to avoid subsequent attempts to retry him for the same crime or crimes and to enable a defendant, after conviction, to raise the constitutional prohibition of double jeopardy against subsequent prosecutions for the same crime or crimes. People v. Rivera, 84 N.Y.2d 766 (1995); - People v. Grega, 72 N.Y.2d 489 (1988); People v. Keindi, 68 N.Y.2d 410 (1986); People v. Morris, 61 N.Y.2d 290 (1984); People v. lannone, 45 N.Y.2d 589 (1978). Under this analysis, an amendment to an SCI will not prejudice a defendant on the merits as long as the SCI provides defendant with notice of the charges against him and as long as the SCI sufficiently specifies the crime or crimes to which a defendant will plead guilty so that he will not risk retrial on those charges. The SCI to which defendant pled guilty here fulfills all of the 31 11 jurisdictional prerequisites of an accusatory instrument and does not differ from the felony complaint in any manner that is meaningful for those purposes. First, defendant had fair notice of the charges against him contained in both the felony complaint and the SCI. The charges and the underlying transactions were the same in the SCI and the felony complaint, and defendant has never shown or even alleged that his defenses to the crimes were in any affected by the change. Indeed, defendant himself requested that the names of the two banks, which did not appear in the felony complaint, be substituted for four named individuals (A: 44, 59-60, 78). Defendant can therefore not credibly claim that he was surprised about the inclusion of the banks, or somehow lacked fair notice of the new allegations. Additionally, the narrowed time frame in the SCI counts did not prejudice defendant. While the felony complaint originally charged that defendant committed the first-degree grand larceny and first-degree scheme to defraud crimes over an eighteen-month period, from April 2006 to mid-October 2007, the SCI narrowed that time frame to an approximately seven- month period, from March 2007 to mid-October 2007. This change in no way made it more difficult for defendant to defend against the charges. Indeed, if anything, it did just the opposite. Second, because the crimes charged in the SCI constituted the same crimes, and same transactions, as those charged in the felony complaint, defendant 32 11 1 was not at risk of being re-tried on the same offenses. Indeed, should any question arise, the SCI directly referenced the felony complaint by complaint number, and a subsequent reviewing court could look at the more specific allegations in the felony complaint, if necessary to resolve that issue. Thus, the crimes charged in the two instruments were the same and the factual allegations were not altered in any way that prejudiced defendant's ability to present a defense or precluded defendant from raising a double jeopardy claim in the future. Additionally, the variances between the SCI and the felony complaint did not implicate any of the prohibitions set forth in C.P.L. § 200.70(2). The difference in the time frame during which the crimes were committed and the naming of the banks as complainants were not made to cure a failure to charge or state an offense, to cure a legal insufficiency of the factual allegations, or to cure a misjoinder of offenses or defendants. And the changes In the complainants names in the grand larceny count were made at the behest of defendant, making the plea and allocution that followed more truthful and accurate. Because the counts contained in the two instruments were both legally sufficient to state the offenses charged and the factual changes in the SCI did not cure any defects, and because defendant has not and does not now claim that the SCI somehow sought to cure a misjoinder of counts or defendants, this portion of section 200.70 is also satisfied. I 33 Moreover, the changes in the factual allegations of the SCI represented an understandable, and desirable, refinement of the information in the felony complaint. Although the individual people named in the felony complaint were victims of defendant's crimes because their credit was affected, it was the banks, not the individuals,who were out of the money, since it was the banks who provided the mortgages on properties valued at over $1 million. Thus, it was rational to name the banks as the victims of defendant's larceny. Similarly, where, as here, the dates of the crimes can be determined with greater precision after the filing of the felony complaint, the SCI can, and should, reflect this more accurate information. Even if this Court declines to apply the standard set forth in CPL § 200.70 addressing the amendment of SCIs, this Court could apply the somewhat more stringent standard applicable to the amendment of indictments. Under that standard, an indictment may be amended as long as the amendment does not change the theory of the case and as long as the amendment is not made to cure a failure to charge or state an offense, to cure a legal insufficiency of the factual allegations, to cure a misjoinder of offenses, or to cure a misjoinder of defendants. C.P.L. § 200.70(1)- (2). Unlike the amendment of SCIs, this Court has had the occasion to address the acceptability of amendments to indictments. For example, in People v. Rivera, 84 N.Y.2d 766(1995), this Court held that the trial court properly allowed the People to N 34 present evidence that defendant acted in concert with others and that the trial court properly charged the jury on accessorial liability, even though the indictment did not charge defendant on a theory of accessorial liability. This Court concluded "[t]hat defendant was indicted as a principal and convicted either as a principal or an accomplice did not alter the theory of liability charged in the indictment. The elements of the indicted crimes were the same whether defendant was a principal or an accessory." Id. at 771. Likewise, in People v. Guidice, 83 N.Y.2d 630(1994), this Court affirmed defendant's conviction, rejecting defendant's argument that the People impermissibly amended the indictment by advancing a theory of accessorial liability at trial, where the indictment did not so specify. This Court stated that "[t]he People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction between principal and accomplice is academic." Id. at 637. With respect to amending the name of the complainant in an indictment, the statute itself is clear that the court may order an amendment of an indictment "with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like. . ." C.P.L. § 200.70(1). Moreover, this Court has also held that amending the name of the complainant is proper in order to, conform the charges to the proof. 35 For example, in People v. Lamm, 292 N.Y.224 (1944), an indictment originally charged defendant with having attempted to extort money from an individual named "Joseph O'Rourke." During the trial, the evidence demonstrated that the money extorted came from a business known as "Joseph Rourke, Inc." At the end of the People's case at trial, the prosecutor "moved to conform the indictment to the proof in so far as the ownership of the money is concerned, there being some question. . . as to whether the ownership was in the corporation or in the individual." Id. at 227. In finding that the amendment was proper, this Court explained that "[n]o new crime was presented by the amendment. The facts that the money was owned by the corporation and that the business threatened was the corporate business in no way changed the criminal act charged or the manner in which it was committed. . . . There was merely a correction of the indictment to conform to the proof that the money extorted was the property of the corporation and not the property of O'Rourke.... Errors in allegations of ownership contained in the indictments. . . have been held properly cured by amendment on the trial." Id. at 229 (internal citations omitted). Additionally, this Court has held that an amendment to an SCI, made as a result of defendant's testimony or with his consent, is entirely proper. For example, in People v. Spann, 56 N.Y.2d 469(1982), the indictment initially charged defendant with first-degree robbery, stating that he forcibly stole jewelry and money from the all victim and that he displayed what appeared to be a pistol, revolver, or other firearm during the robbery. At trial, however, defendant testified that he stole cocaine from the victim, not money or jewelry, and he denied entirely that he used a gun to do so. The court charged the jury that they could find defendant guilty of first-degree robbery and the lesser counts of third-degree robbery and petit larceny even if they found that defendant had stolen drugs from the victim, rather than money or jewelry as specified in the indictment. The jury acquitted defendant of first-degree robbery but convicted him of third-degree robbery. Reviewing this amendment to the indictment, this Court held that, as amended, the indictment fulfilled the constitutional requirements of due process and fair notice. This Court found that "[defendant cannot now be heard to complain that he was unfairly informed about the nature of the property stolen since it was his own testimony that created the discrepancy between the proof at trial and the factual allegation set forth in the indictment." Id. at 473. Further, this Court held that the amendment to the indictment did not change a material element of the crime, noting that the "particular nature of the property stolen is not, by statute, a material element of the crime of robbery." Id. Finally, this Court concluded that there was no doubt that the crime charged by the trial court was the same criminal transaction as that for which defendant was indicted; Id. at 474. See also People v. Prince, 273 N.Y. 90 37 (1937). Numerous Appellate Division courts have similarly found that the amendment of the name of the complainant in an indictment does not amount to changing the crime, since the identity of the complainant is not a material element of the crimes charged. See People v. Ogunmekan, A.D. 3d , 2012 N.Y.App.Div. LEXIS 4007 (1St Dept. May 24, 2012) (amendment changing name of one victim for another in indictment was permissible and raises no jurisdictional defect); People v. Starks, 91 A.D.3d 975 (2d Dept. 2012) (amending name of victim in indictment permissible); People v. Stanley, 23 A.D.3d 683 (3d Dept. 2005); People v. Clonick, 289 A.D.2d 1031 (4th Dept. 2001) (changing name of defrauded insurance company permissible because identity of victim was not a material element of the crime and the crime charged by the trial court was the same criminal transaction for which the grand jury indicted defendant). Similarly, the Appellate Division has regularly held that amendments in indictments concerning the dates of crimes are proper. See People v. Kent, 79 A.D.3d 52, 71 (2d Dept. 2010) (amendment of date of crime proper where date was not a material element of the crime and did not constitute a "major variance" from the theory of the indictment"); People v. Milczakows/cyj, 73 A.D.3d 1453 (4 Ih Dept. 2010); People v. Dallas ,58 A.D.3d 1019 (3d Dept. 2009); People v. Fehr, 45 A.D.3d 38 920 (3d Dept. 2007); People v. Alexander, 37 A.D.3d 908 (3d Dept. 2007); People v. Jones, 37 A.D.3d 1111 (4th Dept. 2007); People v. Straniero, 17 A.D.3d 161 (1St Dept. 2005); People v. Parrilla, 285 A.D.2d 157, 159, 161 (1St Dept. 200 1)(amending time more precisely "targeted" the date on which the crime occurred and the amendment "far from expanding or obfuscating the theory of the prosecution, merely defined it more precisely"). Applying the statutory standard for amending indictments and this Court's precedent here, the variances between the SCI and the felony complaint are acceptable and do not render the SCI jurisdictionally invalid. First, the statute explicitly allows the amendment of the time of the crime or the names of the complainants. Moreover, the shortening of the time frame and the change in the complainants clearly did not change the theory of the case. The People's theory of the case was that defendant obtained personal identifying information from various individuals and used that information to obtain mortgages from banks. The fact that the SCI named the banks did not change the theory of the case. Rather, the naming of the banks identified more specifically, and indeed more accurately, the victims of defendant's fraud and larceny. Whereas the individuals Were victims because their credit was negatively affected by the fraudulent mortgages, the banks were the ones who lent the money and they were the ones who lost the money. Thus, it was logical 39 to identify the banks as the complainants in the SCI. Nor did the substitution of the banks for the complainants change the crime of first-degree grand larceny, as the identity of the complainants is not a material element of the crime. The material elements of first-degree grand larceny are: (1) theft of (2) property whose value exceeds $1 million. C.P.L. § 155.42. Moreover, it was defendant who provided the names of the banks to the People and it was at his insistence that the SCI was changed to include these names (A: 44, 5 9-60, 78). Thus, as in Spann, defendant cannot now credibly claim that the SCI was defective when it was by his request that the change was made. And, as discussed above, evaluating the validity of the SCI in light of the jurisdictional requirements of all accusatory instruments, the SCI is jurisdictionally valid and should not have been dismissed. Moreover, the change here tracks the change authorized in this Court's decision in Lamm quite closely. Here, as in Lamm, the change in the name of the owner of the property taken, in this case, identifying the banks as the complainants (in addition to "others") and therefore the "owners" of the money, did not change the crime itself or how the crime was committed. Like Lamm, the variation in the SCI here more accurately identified the money stolen as coming from the banks and not the individual people whose identities were used. Additionally, as argued above, the variances between the SCI and the aul felony complaint did not implicate any of the prohibitions set forth in C.P.L. § 200.70(2). Thus, the shortening of the time frame during which the crimes were committed and the changing of the names of the complainants were not made to cure a failure to charge or state an offense, to cure a legal insufficiency of the factual allegations, or to cure a misjoinder of offenses or defendants. Thus, because the naming of the banks and the narrowing of the time period did not change the theory of the case, even applying the statutory standard applicable to the amendment of indictments to the factual variances in the SCI as compared to the original felony complaint, the SCI here is jurisdictionally valid. Furthermore, any error in naming the banks as complainants was obviated because the felony complaint named not only the banks but also "others" in that portion of the accusatory instrument, and that term was sufficiently broad to cover the individuals previously named in the felony complaint. While the term was more generic, there is no question that the breadth of the term was sufficient to encompass the individual victims, and that the names of those victims, should they be required for any relevant purpose, appeared in the felony complaint specifically referenced in the SCI. Thus, the SCI to'which defendant pled guilty was jurisdictionally valid because it charged the same offenses as the felony complaint and altered only non- 41 essential factual allegations, based on more accurate information and, at least in part, at the defendant's insistence, and those changes did not prejudice the defendant in any meaningful sense. But even if this Court were to find that changing the names of the complainants constituted too radical a variance, and that the first-degree grand larceny charge in the SCI was a different crime than that charged in the felony complaint, the SCI remains jurisdictionally sound. This is so because one offense, the scheme to defraud, is properly charged in the SCI and the grand larceny charge is joinable with that offense. Under Criminal Procedure Law Section 200.15 and this Court's precedent, an SCI is jurisdictionally valid where the offenses charged in the SCI are "properly joinable" to the offenses charged in the felony complaint. Zanghi, 79 N.Y.2d at 817-8. Criminal Procedure Law Section 195.20 makes clear that where joinable offenses are included, the SCI must, at a minimum, also include at least one offense that was contained in the felony complaint. Id. at 818. Section 200.20(2)(a) of the Criminal Procedure Law defines two offenses as "joinable" where "[t]hey are based upon the same act or upon the same I. criminal transaction. . ." Where proof of one offense would be admissible as evidence in chief upon the trial of the other, the two offenses are joinable. People v Cahill, 2 N.Y.3d 14,43 (2003); People v. Bongarzone, 69 N.Y.2d 892 (1987). 42 The requirement for charging ajdinable offenses in an SCI was satisfied 'here. In the felony complaint, defendant was charged with Scheme to Defraud in the First Degree and defendant was charged with Scheme to Defraud in the First Degree in the SCI. The only difference between these two charges was that the charge in the SCI encompassed a shorter time period than that in the felony complaint. Because it was a shorter time period, and not a larger time period, it was more specific and therefore more accurate and easier to defend against. Accordingly, this charge was properly carried over from the felony complaint to the SCI. The grand larceny charge was properly joinable with the scheme to defraud. The facts supporting this scheme to defraud charge were as follows: defendant took . individuals' personal identifying information and used this information to obtain mortgages in their names without their permission or knowledge. The scheme to defraud charge in the felony complaint and in the SCI reflected defendant's taking ofthe individual identification information and using that information to obtain mortgages in an amount exceeding $1 million, which supports the first-degree grand larceny charge in the SCI, that was also charged in the felony complaint. Thus, the first- degree grand larceny charge was joinable to the scheme to defraud charge in that it shared common elements, the criminal conduct at the "heart of each crime" was comparable, and the "essential nature of the criminal 43 conduct" was the same. Pierce, 14 N.Y.3d at 573-4. Because a scheme to defraud count was properly carried over from the prior felony complaint and because the first- degree grand larceny charge was joinable with that offense, both charges in the SCI were properly alleged in this instrument. Finally, to the extent that the Appellate Division found that the transactions charged in the SCI were different from those charged in the felony complaint, the Appellate Division was wrong. First, as argued above, the SCI specifically referenced the felony complaint by complaint number and the crimes charged in the SCI were the same crimes as those charged in the felony complaint. Thus, the charges in the SCI were clearly linked to the charges in the felony complaint and the transactions alleged there, and not any other separate transactions. Second, to the extent that the Appellate Division assumed otherwise, it failed to place the appropriate burden on defendant to establish a sufficient record to establish that the crimes charged or transactions were different. A defendant bears the consequences of any absences in the record and the burden is on a defendant to clear up any ambiguity in the record. Kinchen, 60 N.Y.2d at 773-74 (sufficient factual record necessary for appellate review); Olivo, 52 N.Y.2d at 320 (holding that it is defendant's obligation to "prepare a proper record"). Defendant had the burden to show that the record demonstrated that the transactions referenced in the SCI were I 44 different from the transactions or charges in the felony complaint, but defendant did I not do so. Here, it was error for the Appellate Division to find that the transactions were different where there was nothing in the record to support that finding. To the contrary, the changes in the SCI - to a shorter time period during which defendant committed the crimes and to the naming of the banks as complainants - instead made the charges more specific and accurate. There is nothing in the record to suggest otherwise and before the Appellate Division ruled that the transactions were different, the court should have required defendant to meet his burden of establishing a sufficient record to show as much. This is all the more important where, as here, defendant's claim need not be preserved. In sum, the SCI to which defendant pled guilty reflected the charges in the felony complaint with limited factual variations. Judged by the standard applicable to the amendment of SCIs, the factual variations here did not prejudice defendant Moreover, even applying the more strict standard applicable to the amendment of indictments, the SCI here was jurisdictionally valid because it did not change the theory of the case. And even if this Court were to reject the application of these standards, the Court should still find the SCI here jurisdictionally proper because it charged the same crimes, or joinable crimes, as those charged in the felony complaint. The Appellate Division thus erred by reversing defendant's conviction 45 and dismissing the SCI. = CONCLUSION For the reasons set forth above, the order of the Appellate Division reversing the conviction and dismissing the SCI should itself be reversed, and the SCI and the conviction reinstated. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: essica L. ZellKer Assistant District Attorney JOHN M. CASTELLANO JESSICA L. ZELLNER Assistant District Attorneys of Counsel July 30, 2012 In