PEOPLE v. SOLOMON (2023)

MEMORANDUM

MEMORANDUM:

The Appellate Division order should be affirmed.

A grand jury indicted defendant on several felony sex offenses based on allegations that he engaged in sexual contact with an underage victim.  Defendant agreed to be prosecuted under a Superior Court Information (“SCI”) and, in full satisfaction of the amended indictment, which was consolidated with the SCI for plea purposes, defendant pleaded guilty to endangering the welfare of a child under Penal Law § 260.10 and was sentenced to three years' probation.  The Appellate Division subsequently concluded the SCI was jurisdictionally defective, reversed defendant's conviction, and dismissed the SCI (203 A.D.3d 1468, 166 N.Y.S.3d 282 [3d Dept. 2022]).  The prosecution appeals.^*

A defendant may waive their constitutional right to grand jury presentment and indictment and proceed by SCI in accordance with the strict technical requirements of CPL 195.10(2).  Here, the SCI was filed after the grand jury indicted defendant and thus the SCI failed to comply with the statutory prerequisites.  Accordingly, the SCI is a nullity and was properly dismissed (see CPL 195.10[2];  People v. Boston, 75 N.Y.2d 585, 555 N.Y.S.2d 27, 554 N.E.2d 64 [1990];  People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];  People v. Randall, 9 N.Y.2d 413, 422–423, 214 N.Y.S.2d 417, 174 N.E.2d 507 [1961]).

Order affirmed, in a memorandum.

FOOTNOTES

FOOTNOTE.   The prosecution limits its challenge to the dismissal of the SCI. Therefore, we have no occasion to opine on the Appellate Division's determination that it was error to permit the prosecutor's amendment of the indictment to correct the victim's date of birth.

Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.  Judge Halligan took no part.