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

1025
KA 10-02111
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELTON MANO, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO (KELLEY PROVO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered October 7, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the second 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
Livingston County Court for proceedings pursuant to CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance (CPCS) in the second degree (Penal Law § 220.18 [3]). After
a deputy sheriff found cocaine, benzylpiperazine and hydrocodone in
defendant’s vehicle during a traffic stop, defendant was charged by
felony complaint with two counts of CPCS in the third degree and was
indicted for, inter alia, one count of CPCS in the third degree and
two counts of CPCS in the fifth degree. After indictment, the
prosecution announced that it intended to charge defendant with one
count of CPCS in the second degree in relation to the same incident.
Defendant waived indictment and agreed to be prosecuted by a superior
court information (SCI) with one count of CPCS in the second degree.
County Court denied defendant’s motion to suppress evidence, and the
court subsequently accepted defendant’s guilty plea to CPCS in the
second degree in satisfaction of the indictment and the SCI.

     Defendant contends that the court erred in refusing to suppress,
inter alia, the drugs seized by a deputy sheriff from his vehicle. We
reject that contention. The record at the suppression hearing
establishes that the deputy sheriff lawfully stopped defendant’s
vehicle for a traffic infraction (see People v Collins, 105 AD3d 1378,
1379, lv denied 21 NY3d 1003) and that the deputy sheriff was
                                 -2-                          1025
                                                         KA 10-02111

justified in asking for defendant’s consent to search the vehicle
inasmuch as he “had a founded suspicion that criminal activity was
afoot” (People v McGinnis, 83 AD3d 1594, 1595, lv denied 18 NY3d 926;
see People v McCarley, 55 AD3d 1396, 1397, lv denied 11 NY3d 899).
The record further establishes that defendant voluntarily consented to
the search of the vehicle, and “ ‘[t]hat search properly encompassed
containers within the vehicle’ . . . , including the [cannister] in
which the drugs were found” (People v Lowe, 79 AD3d 1676, 1677, lv
denied 16 NY3d 833).

     Nevertheless, as the People correctly concede, the SCI is
jurisdictionally defective, and we therefore reverse the judgment of
conviction. The record establishes that, at the time defendant waived
indictment and consented to be prosecuted by an SCI, he had already
been indicted on other charges in relation to the same incident.
“Given the objective and the plain language of CPL 195.10 (2) (b), the
conclusion is inescapable that waiver cannot be accomplished after
indictment” (People v Boston, 75 NY2d 585, 589; see People v Spencer,
87 AD3d 1284, 1286). Furthermore, the SCI charging defendant with
CPCS in the second degree is also jurisdictionally defective pursuant
to CPL 195.20 because defendant “was not held for action of a grand
jury on that charge inasmuch as ‘it was not an offense charged in the
felony complaint or a lesser-included offense of an offense charged in
the felony complaint’ ” (People v Cieslewicz, 45 AD3d 1344, 1345; see
People v Pierce, 14 NY3d 564, 571).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
