PEOPLE v. COLON (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered October 1, 2002, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea of guilty is vacated, Superior Court Information No. 7836/00 is dismissed, the felony complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the felony complaint.

The defendant was charged, by felony complaint, with criminal sale of a controlled substance in the fourth degree (see Penal Law § 220.34), criminal possession of a controlled substance in the fifth degree (see Penal Law § 220.06), and criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03).   The defendant executed a written waiver of indictment and consented to be prosecuted on an information charging him with criminal sale of a controlled substance in the third degree (see Penal Law § 220.39[1] ).   The defendant pleaded guilty to that charge, and a judgment of conviction was entered against him.

As the People correctly concede, the information on which the defendant was prosecuted was jurisdictionally defective because it charged the defendant with an offense which was greater than the offenses charged in the felony complaint (see CPL 195.20;  People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77;  People v. Menchetti, 76 N.Y.2d 473, 475, 560 N.Y.S.2d 760, 561 N.E.2d 536).   Accordingly, the conviction must be reversed.