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

531
KA 14-00408
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT HAIGLER, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered September 5, 2013. The judgment convicted defendant,
upon his plea of guilty, of promoting prison contraband in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated and the
indictment is dismissed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of promoting prison contraband in the second degree
(Penal Law § 205.20 [2]), defendant contends that the judgment of
conviction must be reversed because there was no valid accusatory
instrument in existence at the time of the plea. We agree. Defendant
was indicted in a one-count indictment charging him with promoting
prison contraband in the first degree (Penal Law § 205.25 [2]).
County Court granted defendant’s motion to review the grand jury
minutes and, upon that review, concluded that the evidence before the
grand jury was not legally sufficient to support that charge but was
sufficient to support the lesser included offense of promoting prison
contraband in the second degree. Defendant then pleaded guilty to the
lesser included offense.

     “CPL 210.20 (6) provides that when a court decides to reduce a
count contained in an indictment [to a misdemeanor] on the ground that
it is not supported by legally sufficient evidence, the People do one
of the following: (1) accept the court’s order and file a prosecutor’s
information containing the reduced charge; (2) re-present the [higher
count] to a grand jury; or (3) appeal the court’s order” (People v
Casey, 66 AD3d 1128, 1129; see People v Jackson, 87 NY2d 782, 784).
Here, however, the People did not take any of those three actions, and
defendant pleaded guilty to the reduced charge. Inasmuch as “ ‘[a]
                                 -2-                           531
                                                         KA 14-00408

valid and sufficient accusatory instrument is a nonwaivable
jurisdictional prerequisite to a criminal prosecution’ ” (People v
Dumay, 23 NY3d 518, 522, quoting People v Dreyden, 15 NY3d 100, 103),
the plea must be vacated and the indictment dismissed (see Casey, 66
AD3d at 1130; see also People v Chadick, 122 AD3d 1258, 1259).

     In light of our determination, we do not consider defendant’s
remaining contention.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
