People v. Maglione , 2021 NY Slip Op 06775 ( 2021 )

People v Maglione (2021 NY Slip Op 06775)

People v Maglione

2021 NY Slip Op 06775

Decided on December 02, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 02, 2021
Before: Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.

SCI No. 3568/17 Appeal No. 14737 Case No. 2019-1198

[*1]The People of the State of New York, Respondent,

v

John Maglione, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 16, 2017, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously reversed, on the law, and the superior court information dismissed.

As the People concede, defendant's waiver of indictment and subsequent SCI were jurisdictionally defective, because the charged crime of attempted robbery in the third degree in the SCI was not named in the misdemeanor complaint and was a greater offense than those charged therein (see CPL 195.20; People v Pierce, 14 NY3d 564 [2010]; People v Zanghi, 79 NY2d 815, 817 [1991]). The waiver of indictment was also jurisdictionally infirm because defendant, who was arraigned on a misdemeanor complaint, was not held for grand jury action (see CPL 195.10[1]; People v D'Amico, 76 NY2d 877, 879 [1990]; People v Price, 113 AD3d 883, 885 n 2 [3d Dept 2014]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 2, 2021