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

159
KA 16-00958
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH WALKER, JR., DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


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

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery 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 Supreme
Court, Erie County, for proceedings pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him of
robbery in the first degree (Penal Law § 160.15 [1]) upon his plea of
guilty to a superior court information (SCI). We agree with defendant
that the SCI is jurisdictionally defective based on the People’s
violation of CPL 195.20 and CPL 200.15, and we therefore reverse the
judgment, vacate the plea, dismiss the SCI, and remit the matter to
Supreme Court for proceedings pursuant to CPL 470.45 (see People v
Pierce, 14 NY3d 564, 570-571; People v Mano, 121 AD3d 1593, 1593, lv
dismissed 24 NY3d 1121; People v Tun Aung, 117 AD3d 1492, 1492).

     CPL 195.20 provides in relevant part that “[t]he offenses named
[in the written waiver of indictment and charged in the subsequent
SCI] may include any offense for which the defendant was held for
action of a grand jury and any offense or offenses properly joinable
therewith.” The SCI must therefore charge defendant with either “the
same crime as the felony complaint or a lesser included offense of
that crime” (Pierce, 14 NY3d at 571). Moreover, CPL 195.20 requires
that the SCI charge the same underlying criminal conduct as the felony
complaint (see People v Milton, 21 NY3d 133, 136-137; see also Penal
Law § 10.00 [1]). Thus, when the SCI charges defendant with a
“ ‘different crime entirely’ ” than the felony complaint (People v
Stevenson, 107 AD3d 1576, 1576; see People v Edwards, 39 AD3d 875,
                                 -2-                           159
                                                         KA 16-00958

876), whether by change of date or change of victim or other “factual
discrepancy” (Milton, 21 NY3d at 137), the SCI violates CPL 195.20 and
is therefore jurisdictionally defective, even if it charges defendant
with violating the same section of the Penal Law as the felony
complaint.

     Here, the felony complaint charged defendant with the commission
of robbery in the first degree “on or about the 2nd day of 2011,”
i.e., January 2, 2011. The written waiver of indictment, however,
specified that defendant waived his right to indictment with respect
to the commission of robbery in the first degree on February 2, 2012,
and the SCI itself charged defendant with the commission of robbery in
the first degree on February 2, 2011. Inasmuch as robbery is a
single-act offense (see People v Rosas, 8 NY3d 493, 503; People v
Ramirez, 89 NY2d 444, 452), the January 2, 2011 robbery charged in the
felony complaint was a “ ‘different crime entirely’ ” from both the
February 2, 2012 robbery set forth in the waiver of indictment and the
February 2, 2011 robbery charged in the SCI (Stevenson, 107 AD3d at
1576; see Edwards, 39 AD3d at 876; see also People v Siminions, 112
AD3d 974, 975, lv denied 24 NY3d 1088; People v Harris, 267 AD2d 1008,
1009). Indeed, “the [dates] set forth in the [three] instruments,”
i.e., the felony complaint, the waiver of indictment, and the SCI,
“exclude any possibility that they were based on the same criminal
conduct” (People v Colon, 39 AD3d 661, 662). The SCI therefore
violates CPL 195.20 and must be dismissed as jurisdictionally
defective (see Siminions, 112 AD3d at 975; Colon, 39 AD3d at 662;
Harris, 267 AD2d at 1009).

      The SCI is also jurisdictionally defective inasmuch as it
violates CPL 200.15, which provides in relevant part that a “superior
court information . . . shall not include an offense not named in the
written waiver of indictment.” That “express prohibition” was
violated here (People v Ashe, 74 AD3d 503, 508 [McGuire, J.,
concurring], affd 15 NY3d 909), inasmuch as the SCI included an
offense, i.e., a robbery in the first degree committed on February 2,
2011 that was not set forth in the written waiver of indictment, which
identified only a robbery in the first degree committed on February 2,
2012.

      To the extent that our decision in People v Rossborough (101
AD3d 1775) conflicts with our decision herein, it should no longer be
followed.

     In view of the foregoing, defendant’s remaining contentions are
academic.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
