LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY
OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO
(MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER,
from a judgment of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), rendered May 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first
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.
Defendant appeals from a judgment convicting him of robbery
in the first degree (Penal Law § 160.15 ) upon his
plea of guilty to a superior court information (SCI). We
agree with defendant that the SCI is jurisdictionally
defective based on the People's violation of CPL 195.20
and CPL 200.15, and we therefore reverse the judgment, vacate
the plea, dismiss the SCI, and remit the matter to Supreme
Court for proceedings pursuant to CPL 470.45 (see People
v Pierce, 14 N.Y.3d 564, 570-571; People v
Mano, 121 A.D.3d 1593, 1593, lv dismissed 24
N.Y.3d 1121; People v Tun Aung, 117 A.D.3d 1492,
195.20 provides in relevant part that "[t]he offenses
named [in the written waiver of indictment and charged in the
subsequent SCI] may include any offense for which the
defendant was held for action of a grand jury and any offense
or offenses properly joinable therewith." The SCI must
therefore charge defendant with either "the same crime
as the felony complaint or a lesser included offense of that
crime" (Pierce, 14 N.Y.3d at 571). Moreover, CPL 195.20
requires that the SCI charge the same underlying criminal
conduct as the felony complaint (see People v Milton, 21
N.Y.3d 133, 136-137; see also Penal Law § 10.00
). Thus, when the SCI charges defendant with a"
different crime entirely' " than the felony
complaint (People v Stevenson, 107 A.D.3d 1576,
1576; see People v Edwards, 39 A.D.3d 875, 876),
whether by change of date or change of victim or other
"factual discrepancy" (Milton, 21 N.Y.3d
at 137), the SCI violates CPL 195.20 and is therefore
jurisdictionally defective, even if it charges defendant with
violating the same section of the Penal Law as the felony
the felony complaint charged defendant with the commission of
robbery in the first degree "on or about the 2nd day of
2011, " i.e., January 2, 2011. The written waiver of
indictment, however, specified that defendant waived his
right to indictment with respect to the commission of robbery
in the first degree on February 2, 2012, and the SCI itself
charged defendant with the commission of robbery in the first
degree on February 2, 2011. Inasmuch as robbery is a
single-act offense (see People v Rosas, 8 N.Y.3d 493, 503;
People v Ramirez, 89 N.Y.2d 444, 452), the January 2, 2011
robbery charged in the felony complaint was a "
different crime entirely' " from both the February
2, 2012 robbery set forth in the waiver of indictment and the
February 2, 2011 robbery charged in the SCI
(Stevenson, 107 A.D.3d at 1576; see
Edwards, 39 A.D.3d at 876; see also People v Siminions,
112 A.D.3d 974, 975, lv denied 24 N.Y.3d 1088; People v
Harris, 267 A.D.2d 1008, 1009). Indeed, "the
[dates] set forth in the [three] instruments, " i.e.,
the felony complaint, the waiver of indictment, and the SCI,
"exclude any possibility that they were based on the
same criminal conduct" (People v Colon, 39
A.D.3d 661, 662). The SCI therefore violates CPL 195.20 and
must be dismissed as jurisdictionally defective (see
Siminions, 112 A.D.3d at 975; Colon, 39 A.D.3d at 662;
Harris, 267 A.D.2d at 1009).
is also jurisdictionally defective inasmuch as it violates
CPL 200.15, which provides in relevant part that a
"superior court information... shall not include an
offense not named in the written waiver of indictment."
That "express prohibition" was violated here
(People v Ashe, 74 A.D.3d 503, 508 [McGuire, J.,
concurring], affd 15 N.Y.3d 909), inasmuch as the SCI
included an offense, i.e., a robbery in the first degree
committed on February 2, 2011 that was not set forth in the
written waiver of indictment, which identified only a robbery
in the first degree committed on February 2, 2012.
extent that our decision in People v Rossborough (101 A.D.3d
1775) conflicts with our decision ...