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

273
KA 15-01099
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACOB MELVIN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered March 18, 2015. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty under an indictment of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [3]).
In appeal No. 2, defendant appeals from a judgment convicting him upon
his pleas of guilty under a superior court information (SCI) of two
counts of assault in the second degree (§ 120.05 [7]).

     Preliminarily, the People correctly concede that defendant did
not validly waive his right to appeal in a written waiver of the right
to appeal, given the total absence of an oral colloquy on that subject
(see People v Banks, 125 AD3d 1276, 1277, lv denied 25 NY3d 1159).
Nevertheless, we reject defendant’s challenge to the severity of the
sentence in appeal No. 1.

     Defendant contends that the SCI in appeal No. 2 is
jurisdictionally defective because it charged him with committing two
assaults on December 3, 2014, even though he waived indictment only
with respect to two assaults committed on December 23, 2014.
Initially, we note that “[d]efendant’s challenges to the
jurisdictional requirements of the waiver of indictment and the
superior court information need not be preserved for [appellate]
review” and are not forfeited by the guilty plea (People v Lugg, 108
AD3d 1074, 1074; see People v Boston, 75 NY2d 585, 589 n; People v
                                 -2-                           273
                                                         KA 15-01099

Jackson, 128 AD3d 1279, 1279, lv denied 26 NY3d 930). Here, defendant
was initially charged by felony complaint with two counts of assault
in the second degree committed on December 23, 2014, and defendant
subsequently waived his right to indictment on those particular
charges. The SCI, however, charged defendant with committing two acts
of assault in the second degree on December 3, 2014, rather than
December 23, 2014, and the special information attached to the SCI
provided that the assaults occurred on December 23, 2014. During the
plea colloquy, Supreme Court referenced both dates.

     In our view, defendant never waived his constitutional right to
indictment for any offenses taking place on December 3, 2014; rather,
he waived his constitutional right to indictment for two assaults
committed on December 23, 2014. Under these circumstances, as we
recently explained in People v Walker ([appeal No. 2] ___ AD3d ___,
___ [Mar. 24, 2017]), the SCI is jurisdictionally defective and must
be dismissed. We disagree with the People that the date-of-crime
discrepancy here may be excused or overlooked as a ministerial
typographical error. In our view, it is not “obvious” (People v June,
30 AD3d 1016, 1017, lv denied 7 NY3d 813, reconsideration denied 7
NY3d 868), nor is it “clear” (Jackson, 128 AD3d at 1279-1280), that
the date-of-crime discrepancy at issue here is in fact a mere
typographical error (see e.g. People v Siminions, 112 AD3d 974, 975,
lv denied 24 NY3d 1088). We therefore reverse the judgment in appeal
No. 2, vacate the guilty pleas, dismiss the SCI, and remit the matter
to Supreme Court for proceedings pursuant to CPL 470.45 (see People v
Mano, 121 AD3d 1593, 1593, lv dismissed 24 NY3d 1121; People v Tun
Aung, 117 AD3d 1492, 1492).

     In view of the foregoing, defendant’s remaining contentions in
appeal No. 2 are academic.




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
