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

490
KA 12-01740
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TUN AUNG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO 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 Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered May 31, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted strangulation 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 Supreme
Court, Erie County, for proceedings pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted strangulation in the second degree (Penal
Law §§ 110.00, 121.12), defendant contends that the superior court
information (SCI) was jurisdictionally defective. We agree. The two
counts charged in the SCI were not offenses for which defendant was
held for action of a grand jury (see CPL 195.20), i.e., those two
counts were not included in the felony complaint, and they were not
lesser included offenses of an offense charged in the felony complaint
(see People v Pierce, 14 NY3d 564, 571; People v Menchetti, 76 NY2d
473, 477). “[T]he primary purpose of the proceedings upon such felony
complaint is to determine whether the defendant is to be held for the
action of a grand jury with respect to the charges contained therein”
(CPL 180.10 [1]). Thus, “ ‘the waiver procedure is triggered by the
defendant being held for [g]rand [j]ury action on charges contained in
a felony complaint . . . and it is in reference to those charges that
its availability must be measured’ ” (Pierce, 14 NY3d at 571, quoting
People v D’Amico, 76 NY2d 877, 879). Inasmuch as the SCI to which
defendant pleaded guilty did not “include at least one offense that
was contained in the felony complaint,” it was jurisdictionally
defective (People v Zanghi, 79 NY2d 815, 818). That defect does not
require preservation, and it survives defendant’s waiver of the right
to appeal and his guilty plea (see id. at 817; People v Stevenson, 107
                                 -2-                           490
                                                         KA 12-01740

AD3d 1576, 1576; People v Cieslewicz, 45 AD3d 1344, 1345).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
