                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   107043
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GREGORY SEALS,
                    Appellant.
________________________________


Calendar Date:   November 24, 2015

Before:   Garry, J.P., Rose, Lynch, Devine and Clark, JJ.

                             __________


     Brian M. Quinn, Albany, for appellant.

      M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs,
for respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered June 20, 2014, convicting
defendant upon his plea of guilty of the crime of attempted
criminal possession of a controlled substance in the fifth
degree.

      Police stopped a vehicle that defendant was driving in the
Town of Halfmoon, Saratoga County and discovered 42 grams of a
substance that field tested positive for the presence of cocaine.
Defendant was charged in two felony complaints with criminal
possession of a controlled substance in the third degree and
criminal possession of a controlled substance in the fifth
degree. Thereafter, pursuant to a negotiated plea agreement,
defendant waived indictment, pleaded guilty to a superior court
                              -2-                107043

information (hereinafter SCI) that charged him with attempted
criminal possession of a controlled substance in the fifth
degree, and waived his right to appeal. He was sentenced as a
second felony offender to a prison term of 1½ years, to be
followed by one year of postrelease supervision. Defendant
appeals.

       Defendant contends that the waiver of indictment and SCI
were jurisdictionally defective in that they did not charge an
"offense for which the defendant was held for action of a grand
jury" (CPL 195.20). Pursuant to CPL 195.20, a defendant may
waive indictment and plead guilty to an SCI that names a
different offense from that charged in the felony complaint only
when the crime named in the SCI is a lesser included offense of
the original charge (see People v Milton, 21 NY3d 133, 136
[2013]; People v Menchetti, 76 NY2d 473, 477 [1990]; People v
Gammons, 106 AD3d 1287, 1288 [2013]).1 We agree with defendant
that this requirement was not satisfied.

      "A crime is a lesser included offense of a charge of a
higher degree only when in all circumstances, not only in those
presented in the particular case, it is impossible to commit the
greater crime without concomitantly, by the very same conduct,
committing the lesser offense" (People v Baker, 123 AD3d 1378,
1380 [2014] [citations omitted]; see People v Wheeler, 67 NY2d
960, 962 [1986]). To be guilty of the offense charged in the
SCI, a defendant must attempt to "knowingly and unlawfully
possess cocaine" that weighs "[500] milligrams or more" (Penal
Law §§ 110.00, 220.06 [5]). The first felony complaint charged
defendant with criminal possession of a controlled substance in
the third degree, which requires proof of knowing, unlawful
possession of substances containing narcotic drugs that have "an
aggregate weight of one-half ounce or more" (Penal Law § 220.16


    1
        The provision in CPL 195.20 that permits a waiver of
indictment and an SCI to include an offense that is "properly
joinable" with a crime for which the defendant was held for the
action of a grand jury is applicable only when the SCI "also
include[s] at least one offense that was contained in the felony
complaint" (People v Zanghi, 79 NY2d 815, 818 [1991]).
                              -3-                107043

[12]). Considered in the abstract, it is possible to possess or
attempt to possess one-half ounce of a mixture of cocaine and
some other substance in which the proportion of cocaine is less
than 500 milligrams. Thus, it is possible to commit criminal
possession of a controlled substance in the third degree without
also committing attempted criminal possession of a controlled
substance in the fifth degree, and the offense charged in the SCI
is not a lesser included offense of the crime charged in the
first felony complaint.

      The second felony complaint charged defendant with criminal
possession of a controlled substance in the fifth degree, which
is committed when a person "knowingly and unlawfully possesses a
controlled substance with intent to sell it" (Penal Law § 220.06
[1]). It is possible to possess cocaine with the intent to sell
it while not concurrently possessing cocaine weighing more than
500 milligrams, or attempting to do so, as required to commit the
crime charged in the SCI (see Penal Law §§ 110.00, 220.06 [5]).
Thus, the crime charged in the SCI is not a lesser included
offense of the crime charged in the second felony complaint (see
People v Nemnom, 123 AD3d 740, 741 [2014]; People v Lee, 196 AD2d
509, 510 [1993], lv denied 82 NY2d 851 [1993]; see also People v
Betters, 113 AD3d 934, 935 [2014]).

      As the People concede, the determination that the crime
charged in the SCI is not a lesser included offense of those
named in the felony complaints renders the SCI jurisdictionally
defective, a failure that survives defendant's guilty plea and
waiver of his right to appeal (see People v Menchetti, 76 NY2d at
475 n; People v Simmons, 27 AD3d 786, 786-787 [2006], lv denied 7
NY3d 763 [2006]). Thus, defendant's plea must be vacated and the
SCI dismissed. "If warranted, further proceedings may be had on
the felony complaint in the local criminal court" (People v
Nemnom, 123 AD3d at 741).

      In light of this determination, defendant's remaining
contentions are academic.
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     Rose, Lynch, Devine and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
superior court information dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
