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

144
KA 12-01041
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH K. RANDLE, 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 (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered April 19, 2012. The judgment convicted defendant, upon
his plea of guilty, of driving while intoxicated, a class E felony
(three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of count three of the superior court information, vacating
the plea with respect to that count and dismissing that count, and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of three counts of felony driving while
intoxicated ([felony DWI] Vehicle and Traffic Law §§ 1192 [3]; 1193
[1] [c] [i]), arising from three separate incidents. Defendant was
initially arraigned in local court on two separate felony complaints
charging him with, inter alia, felony DWI for two incidents occurring
in August and September 2011. Defendant was subsequently charged in a
third felony complaint with one count of aggravated unlicensed
operation of a motor vehicle in the first degree ([AUO1] § 511 [3] [a]
[i]) for an incident occurring in October 2011. Defendant thereafter
executed a written waiver of indictment and agreed to be prosecuted by
a superior court information (SCI). The SCI charged defendant with
three counts of felony DWI, i.e., one count for each incident.
Defendant pleaded guilty to all three counts, and waived his right to
appeal.

     As a preliminary matter, we reject defendant’s contention that
his waiver of the right to appeal is unenforceable. Contrary to
defendant’s contention, his waiver of the right to appeal was
knowingly, voluntarily, and intelligently entered (see People v Lopez,
6 NY3d 248, 256), and that valid waiver encompasses his challenge to
                                 -2-                           144
                                                         KA 12-01041

the severity of the sentence (see id. at 255-256).

     As the People correctly concede, however, the third count of
felony DWI in the SCI is jurisdictionally defective pursuant to CPL
195.20 because defendant was not held for action of the grand jury on
that charge, nor is it a joinable offense pursuant to that statute or
case law. We therefore modify the judgment accordingly. Initially,
“[w]e 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”
(People v Stevenson, 107 AD3d 1576, 1576). The third count of felony
DWI is jurisdictionally defective because it “ ‘was not an offense
charged in the [third] felony complaint or a lesser-included offense
of an offense charged in th[at] felony complaint’ ” (People v
Cieslewicz, 45 AD3d 1344, 1345). Furthermore, although the third
count of felony DWI charged in the SCI is joinable, within the meaning
of CPL 200.20 (2) (a), to the charge on which defendant was held for
action of a grand jury, i.e., the AUO1 charge in the third felony
complaint, “[t]he language of CPL 195.20 makes clear that where
‘joinable’ offenses are included, the [SCI] must, at a minimum, also
include at least one offense that was contained in the felony
complaint” at issue (People v Zanghi, 79 NY2d 815, 818).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
