Calendar Date: November 22, 2013.
Matthew C. Hug, Troy, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Lahtinen, J.P., Stein, McCarthy and Garry, JJ.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the County Court of Ulster County (Bruhn, J.), rendered September 24, 2007, convicting defendant upon his plea of guilty of the crimes of criminal sexual act in the first degree and conspiracy in the fourth degree, (2) from an order of said court (McGinty, J.), entered May 28, 2010, which denied defendant's motion to exonerate the surcharge imposed pursuant to CPL 420.10, and (3) by permission, from an order of said court (McGinty, J.), entered December 1, 2011, which partially denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and set aside the sentence, without a hearing.
Defendant was charged by felony complaint with three counts of rape in the first degree and was later indicted on two counts of criminal sexual act in the first degree. While these charges were pending, defendant allegedly participated in a robbery and was charged in a misdemeanor complaint with criminal facilitation in the fourth degree. Defendant thereafter appeared before County Court (Bruhn, J.) and, with respect to the criminal facilitation charge, purported to waive indictment and was charged by superior court information with the crime of conspiracy in the fourth degree. Defendant then pleaded guilty, in full satisfaction of all charges, to one count each of criminal sexual act in the first degree and conspiracy in the fourth degree and waived his right to appeal. In accord with the negotiated plea agreement, County Court imposed concurrent prison terms of 1⅓ to 4 years on the conspiracy conviction and six years, plus five years of postrelease supervision, on the criminal sexual act conviction, and issued an order of protection . Defendant now appeals.
Defendant argues, and the People concede, that his conviction for conspiracy in the fourth degree must be reversed. In New York, felony charges must be prosecuted by indictment, unless a defendant "held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, ... waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney" (NY Const, art I, § 6; see CPL 195.10 ). Where an indictment waiver has been secured, however, the People may not charge in a superior court information a "'greater offense, which [has] additional aggravating elements'" (People v Milton, 21 N.Y.3d 133, 136 , quoting People v Zanghi, 79 N.Y.2d 815, 817 ). This is precisely what occurred here. The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree. Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity (see People v Milton, 21 N.Y.3d at 135; People v Pierce, 14 N.Y.3d 564, 574 ), notwithstanding defendant's appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information (see People v Pierce, 14 N.Y.3d at 567; People v Zanghi, 79 N.Y.2d at 817; People v Menchetti, 76 N.Y.2d 473, 475 n ). 
In addition, as a result of the dismissal of the conspiracy charge, defendant's plea to criminal sexual act in the first degree must be vacated. "[W]hen a guilty plea is induced by the court's explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and [the other] conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept" (People v Pichardo, 1 N.Y.3d 126, 129 ; see People v Rowland, 8 N.Y.3d 342, 345 ). Here, defendant pleaded guilty to criminal sexual act in the first degree with the promise that his sentence thereon would run concurrently with the sentence on the conspiracy charge. Inasmuch as "we cannot say that defendant would have... pleaded guilty to the [criminal sexual act in the first degree charge]... had it not been for the... [conspiracy in the fourth degree conviction], of which he now stands acquitted, " his plea to this charge must be vacated (People v Pichardo, 1 N.Y.3d at 130; see People v Rowland, 8 N.Y.3d at 345; People v Bennett, 107 A.D.3d 577 ; People v Puntervold, 60 A.D.3d 1090, 1090 ). Defendant's remaining claim with respect to the order of protection is academic.
Lahtinen, J.P., McCarthy and Garry, JJ., concur.
ORDERED that the judgment is reversed, on the law, plea vacated, superior court information dismissed, and matter remitted to the County Court ...