Opinion
109582
04-25-2019
The PEOPLE of the State of New York, Respondent, v. Bikeo K. EDWARDS, Appellant.
G. Scott Walling, Slingerlands, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ.
MEMORANDUM AND ORDER
Lynch, J. Defendant waived indictment and pleaded guilty to attempted criminal possession of a weapon in the second degree as charged in a superior court information. Consistent with the terms of the plea agreement, defendant was sentenced as a second violent felony offender to a prison term of six years, followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that the waiver of indictment was deficient, requiring that the guilty plea be vacated, because there was not strict compliance with the statutory mandates of CPL 195.20. Specifically, defendant asserts that the superior court information (hereinafter SCI) does not set forth the "approximate time" of the offense nor does the record establish that the waiver of indictment was signed by defendant in open court. With regard to the approximate time of the offense, such information, which is required by the plain language of the statute, was omitted from the SCI (see CPL 195.20 ; People v. Busch–Scardino, 166 A.D.3d 1314, 1316, 88 N.Y.S.3d 294 [2018] ; see also People v. Colon–Colon, 169 A.D.3d 187, 192, 92 N.Y.S.3d 520 [2019] ). Furthermore, this is not "a situation where the time of the offense is unknown or, perhaps, unknowable" so as to excuse the absence of such information ( People v. Busch–Scardino, 166 A.D.3d at 1316, 88 N.Y.S.3d 294 ). As we have previously noted, "[a]ny other interpretation would render the statute's language requiring the ‘approximate time’ superfluous or redundant" ( id. ). Inasmuch as defendant's waiver of indictment was not procured in strict compliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty plea and dismissal of the SCI (see id. ; People v. Donnelly, 23 A.D.3d 921, 921–922, 804 N.Y.S.2d 459 [2005] ; see also People v. Page, 88 N.Y.2d 1, 6–10, 643 N.Y.S.2d 1, 665 N.E.2d 1041 [1996] ). As a result, we need not reach defendant's remaining contentions.
Defendant's jurisdictional challenge is not precluded by his guilty plea, and it is not subject to the preservation requirement (see People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 [1991] ; People v. Boston, 75 N.Y.2d 585, 589 n., 555 N.Y.S.2d 27, 554 N.E.2d 64 [1990] ; People v. Gannon, 167 A.D.3d 1163, 1164, 88 N.Y.S.3d 720 [2018] ).
Egan Jr., J.P., Clark, Mulvey and Devine, JJ., concur.
ORDERED that the judgment is reversed, on the law, and superior court information dismissed.