PEOPLE v. TRAPANI (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered June 22, 2021, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant agreed to waive indictment and be prosecuted pursuant to a superior court information (hereinafter SCI) charging him with one count of burglary in the third degree.  Pursuant to a plea agreement, defendant pleaded guilty to the charged crime with the understanding that he would be allowed to participate in a drug treatment court program.  The agreement contemplated that defendant would be sentenced to a term of probation if successful in treatment but that, if he was not, he could be sentenced, as a second felony offender, to a prison term of up to 31/212 to 7 years.  The agreement also required defendant to waive his right to appeal.  Defendant was ultimately terminated from the treatment program, after which County Court sentenced him to a prison term of 2 to 4 years.  This appeal ensued.

The N.Y. Constitution generally requires “that no person shall be held to answer for an infamous crime unless upon indictment of the [g]rand [j]ury” (People v. Boston, 75 N.Y.2d 585, 587, 555 N.Y.S.2d 27, 554 N.E.2d 64 [1990], citing N.Y. Const, art I, § 6).  An exception exists for individuals held for grand jury action upon charges for certain offenses, and such a defendant is permitted to waive indictment and consent to be prosecuted by an SCI so long as he or she has “the consent of the district attorney” to do so and “such waiver [is] evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” (N.Y. Const, art I, § 6;  see People v. Boston, 75 N.Y.2d at 588, 555 N.Y.S.2d 27, 554 N.E.2d 64).  CPL article 195, which was enacted to implement those constitutional requirements, also “specifies that a defendant may waive indictment and consent to be prosecuted by SCI when a local court has held the defendant for the action of a grand jury, the defendant is not charged with a class A felony, and the [d]istrict [a]ttorney consents to the waiver” (People v. Thomas, 34 N.Y.3d 545, 568, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  see CPL 195.10, 195.20;  People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990]).  “Compliance with this unequivocal [constitutional and statutory] dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” (People v. Donnelly, 23 A.D.3d 921, 922, 804 N.Y.S.2d 459 [3d Dept. 2005] [citations and footnote omitted];  see People v. Solomon, 39 N.Y.3d 1114, 1115, 186 N.Y.S.3d 849, 208 N.E.3d 78 [2023];  People v. Berry, 222 A.D.3d 1109, 1109–1110, 201 N.Y.S.3d 586 [3d Dept. 2023]).

The People concede, and our review of the record confirms, that defendant's waiver of indictment did not comply with those requirements.  The plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense (compare People v. Rupp, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4845771 [3d Dept. 2024] [decided herewith], with People v. Patterson, 227 A.D.3d 1231, 1232, 209 N.Y.S.3d 675 [3d Dept. 2024], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Oct. 30, 2024], and People v. Simmons, 110 A.D.3d 1371, 1372, 973 N.Y.S.2d 865 [3d Dept. 2013]).  Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel.  Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel (People v. Rickman, 208 A.D.3d 1389, 1390, 174 N.Y.S.3d 146 [3d Dept. 2022];  see People v. Berry, 222 A.D.3d at 1110, 201 N.Y.S.3d 586;  People v. Camlin, 215 A.D.3d 1013, 1014, 185 N.Y.S.3d 721 [3d Dept. 2023];  compare People v. Lunt, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4845813 [3d Dept. 2024] [decided herewith]).  Thus, in contrast to (People v. Lunt, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4845813 [decided herewith]), the record does not reflect that defendant's waiver of indictment passes constitutional and statutory muster, and it follows that defendant's guilty plea must be vacated and the underlying SCI dismissed (see People v. Berry, 222 A.D.3d at 1110, 201 N.Y.S.3d 586;  People v. Camlin, 215 A.D.3d at 1014, 185 N.Y.S.3d 721;  People v. Rickman, 208 A.D.3d at 1390, 174 N.Y.S.3d 146).  In view of the foregoing, defendant's challenge to the validity of his waiver of the right to appeal is academic.

ORDERED that the judgment is reversed, on the law, and superior court information is dismissed.

Egan Jr., J.

Garry, P.J., Aarons, Lynch and Ceresia, JJ., concur.