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

852.1
KA 14-00994
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

PAUL J. PRIEST, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered March 25, 2014. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first degree and rape in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea and waiver of indictment are
vacated, the superior court information is dismissed, and the matter
is remitted to Jefferson County Court for proceedings pursuant to CPL
470.45.

      Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [b]) and rape in the third
degree (§ 130.25 [2]). “As the People correctly concede, the waiver
of indictment and superior court information are defective and,
therefore, the plea is a nullity and must be vacated. Where, as here,
a defendant is charged with a class A felony, the defendant cannot
validly waive indictment or consent to be prosecuted by a superior
court information” (People v Mayo, 21 AD3d 1316, 1316-1317; see CPL
195.10 [1] [b]; People v Trueluck, 88 NY2d 546, 549-550). We
therefore vacate defendant’s plea and his waiver of indictment, and we
dismiss the superior court information. “Of course, the People may
present the case to the [g]rand [j]ury” (People v Ford, 159 AD2d 933,
934).




Entered:    July 2, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
