PEOPLE v. GOFORTH (2007)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the third degree (Penal Law § 265.02[4] ).   We agree with defendant that the superior court information (SCI) was jurisdictionally defective because he was not held for action of a grand jury on the charge of criminal possession of a weapon in the third degree (see CPL 195.20;  People v. Kohl, 19 A.D.3d 1155, 798 N.Y.S.2d 276).  “A defendant is held for action of a grand jury ‘on the lesser included offenses as well as a greater offense charged in the felony complaint’ ” (Kohl, 19 A.D.3d at 1156, 798 N.Y.S.2d 276, quoting People v. Menchetti, 76 N.Y.2d 473, 477, 560 N.Y.S.2d 760, 561 N.E.2d 536);  criminal possession of a weapon in the third degree under Penal Law § 265.02(4) is not, however, a lesser included offense of criminal possession of a weapon in the second degree (§ 265.03[2];  see People v. Totten, 161 A.D.2d 678, 555 N.Y.S.2d 451;  see generally People v. Okafore, 72 N.Y.2d 81, 89 n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245).   We therefore conclude that defendant was not held for action of a grand jury on the charge to which he pleaded guilty.

 We further agree with defendant that, because the SCI does not also include the offense that was contained in the felony complaint, i.e., criminal possession of a weapon in the second degree, the offense of criminal possession of a weapon in the third degree is not a joinable offense to the charge on which defendant was held for action of a grand jury.   Thus, the SCI is jurisdictionally defective on that ground as well (see Kohl, 19 A.D.3d at 1156, 798 N.Y.S.2d 276;  cf. People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799, lv. denied 7 N.Y.3d 813, 868, 822 N.Y.S.2d 488, 855 N.E.2d 804;  People v. Clark, 24 A.D.3d 1225, 1226, 806 N.Y.S.2d 834, lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377;  see generally People v. McClain, 24 A.D.3d 1271, 1272, 805 N.Y.S.2d 906).

 “ ‘The waiver [of indictment] procedure [set forth in CPL 195.20] is triggered by the defendant being held for [g]rand [j]ury action on charges contained in a felony complaint ․ and it is in reference to those charges that its availability must be measured’ ” (People v. Trueluck, 88 N.Y.2d 546, 551, 647 N.Y.S.2d 476, 670 N.E.2d 977, quoting People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488).   As we noted in Kohl, the “narrow exception [set forth in People v. Johnson, 89 N.Y.2d 905, 907-908, 653 N.Y.S.2d 265, 675 N.E.2d 1217] allowing pleas to crimes with common elements of fact and law ․ does not apply to waivers of indictment” (id. at 1156, 798 N.Y.S.2d 276;  see People v. Quarcini, 4 A.D.3d 864, 865, 771 N.Y.S.2d 784).   We therefore reverse the judgment, vacate the plea of guilty, dismiss the SCI and remit the matter to County Court for proceedings pursuant to CPL 470.45.   In light of our determination, we need not address defendant's remaining contention.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the plea is vacated, the superior court information is dismissed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 470.45.

MEMORANDUM: