Calendar Date: November 19, 2019
E. Stone Jr., Vestal, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D.
Ferri of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.
from a judgment of the County Court of Broome County (Dooley,
J.), rendered June 29, 2017, which sentenced defendant upon
his adjudication as a youthful offender.
sole contention on this appeal, which the People have
conceded based on this Court's decision in People v
Busch-Scardino (166 A.D.3d 1314');">166 A.D.3d 1314 ), is that the
waiver of indictment is invalid and the superior court
information (hereinafter SCI) is jurisdictionally defective
for failing to set forth the approximate time of the charged
offense in accordance with CPL 195.20. Indeed, that has been
the standard we have applied since Busch-Scardino,
and we further recognize that this is not a case where the
time of the offense "is unknown or, perhaps,
unknowable" (People v Busch-Scardino, 166
A.D.3d at 1316).
Court of Appeals recently addressed the validity of appeal
waivers in three consolidated appeals, and, in one of the
appeals, the Court also addressed the validity of that
defendant's waiver of indictment with respect to charges
involving child sexual abuse (People v Lang, ___
N.Y.3d ___, ___, 2019 NY Slip Op 08545, *7-9 ). The
asserted jurisdictional flaw in Lang was the factual
omission of the date, approximate time and place of the
specific offense in the written waiver of indictment
(id. at *3). To resolve that contention, the Court
explained that, "[i]n assessing the facial sufficiency
of facts alleged as to non-elements of the crime in an
accusatory instrument, the fundamental concern is whether the
defendant had reasonable notice of the charges for double
jeopardy purposes and to prepare a defense"
(id. at *8). The Court elaborated that "the
omission from the waiver of indictment form of nonelemental
factual information that is not necessary for a
jurisdictionally-sound indictment is ... forfeited by a
guilty plea" (id.). Notably, the defendant in
Lang made "no claim that he lacked notice of
the precise crimes for which he waived prosecution by
indictment. Nor could he, since the dates and places of the
offenses were sufficiently detailed in each of the actual
accusatory instruments the three local court complaints and
the SCI charging [him]" (id.). Finally, the
Court noted that "all defendants can seek a bill of
particulars as the remedy to obtain the more specific
information necessary for notice purposes" (id.
at *9). On that basis, the Court concluded that there was no
jurisdictional infirmity and that "having [pleaded]
guilty without raising any legal challenge to the contents of
[the waiver of indictment] form in the trial court," the
defendant's argument was forfeited by his guilty plea
reasoning of Lang requires this Court to reassess
and abandon the standard enunciated in
Busch-Scardino. There is no question here that the
waiver of indictment was signed in open court with counsel
present in accordance with the procedural requirements set
forth in NY Constitution, article I, § 6, which
"establishes the prima facie validity of the waiver of
the right to prosecution by indictment" (People v
Myers, 32 N.Y.3d 18, 23 ). The "approximate
time" of the arson charge under review constitutes
nonelemental factual information. Lang instructs
that we should look not only at the waiver of indictment and
the SCI, but also at the local accusatory instruments to
ascertain whether adequate notice was provided. Here, the
felony complaint mirrors both the waiver and the SCI by
providing the date and specific address, but without
specifying the approximate time. Nonetheless, defendant
raised no objection before County Court, made no demand for a
bill of particulars and "lodges no claim that he lacked
notice of the precise crime for which he waived prosecution
by indictment" (People v Lang, 2019 NY Slip Op
08545 at *8). In context, we conclude that the defect here
was not jurisdictional and that defendant forfeited his
challenge upon his plea of guilty (see People v
Shindler, ___ A.D.3d ___ [decided herewith]).
Jr., J.P., Clark and ...