Opinion
14737 SCI No. 3568/17 Case No. 2019-1198
12-02-2021
The PEOPLE of the State of New York, Respondent, v. John MAGLIONE, Defendant-Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.
Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 16, 2017, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously reversed, on the law, and the superior court information dismissed.
As the People concede, defendant's waiver of indictment and subsequent SCI were jurisdictionally defective, because the charged crime of attempted robbery in the third degree in the SCI was not named in the misdemeanor complaint and was a greater offense than those charged therein (see CPL 195.20 ; People v. Pierce, 14 N.Y.3d 564, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ; People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 [1991] ). The waiver of indictment was also jurisdictionally infirm because defendant, who was arraigned on a misdemeanor complaint, was not held for grand jury action (see CPL 195.10[1] ; People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990] ; People v. Price, 113 A.D.3d 883, 885 n 2, 978 N.Y.S.2d 409 [3d Dept. 2014] ).