        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

648
KA 12-00470
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AARON STEVENSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 28, 2011. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, the superior
court information is dismissed and the matter is remitted to Erie
County Court for proceedings pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of rape in the first degree (Penal Law §
130.35 [1]). Defendant was charged by felony complaint with the
forcible rape of one individual, but after arraignment and his waiver
of indictment, County Court granted the People’s motion to amend the
superior court information (SCI) to charge defendant with the forcible
rape of a different individual. The court accepted defendant’s guilty
plea to the charge of forcible rape with respect to the second
individual.

     As the People correctly concede, the SCI is jurisdictionally
defective, and we therefore reverse the judgment of conviction. We
note that defendant’s contention that the SCI is jurisdictionally
defective does not require preservation, and that contention survives
defendant’s valid waiver of the right to appeal (see People v
Cieslewicz, 45 AD3d 1344, 1345; People v Edwards, 39 AD3d 875, 876-
877). “[T]he designation of a[n individual] in the [SCI] different
from the [individual] named in the felony complaint renders the crime
contained in the information a different crime entirely” (Edwards, 39
AD3d at 876). Thus, defendant was not held for action of a grand jury
on the charge in the SCI inasmuch as “it was not an offense charged in
the felony complaint or a lesser-included offense of an offense
charged in the felony complaint” (Cieslewicz, 45 AD3d at 1345
                                 -2-                           648
                                                         KA 12-00470

[internal quotation marks omitted]; see generally CPL 195.20).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
