PEOPLE v. EVANS (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alison M. Hamanjian, J.), rendered April 27, 2023, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, count 3 of the indictment is dismissed, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings on the remaining counts of the indictment.

The defendant was indicted, inter alia, on one count of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]), two counts of criminal possession of a weapon in the second degree (id. § 265.03[3], [1][b]), and two counts of criminal possession of a weapon on school grounds (id. § 265.01–a), as a result of a shooting.  He was convicted, as a juvenile offender, of criminal possession of a weapon in the second degree, upon his plea of guilty to count 3 of the indictment (id. § 265.03[3]).  The defendant appeals, contending that count 3 of the indictment was jurisdictionally defective.

“A jurisdictional defect in an indictment may not be waived by a guilty plea and can be raised for the first time on appeal” (People v. Guerrero, 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51;  see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656).  “ ‘An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all’ ” (People v. Guerrero, 28 N.Y.3d at 116, 42 N.Y.S.3d 80, 65 N.E.3d 51, quoting People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773;  see People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656).  Ordinarily, “an indictment's ‘incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime’ ” (People v. Saenger, 39 N.Y.3d 433, 438, 190 N.Y.S.3d 297, 211 N.E.3d 686, quoting People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496).

Penal Law § 30.00(2) provides, in relevant part, that a 15 year old may be held criminally responsible for conduct constituting criminal possession of a weapon in the second degree under Penal Law § 265.03, “where such machine gun or such firearm is possessed on school grounds” (see People v. Raul A., 215 A.D.3d 500, 501–502, 187 N.Y.S.3d 32).  Concomitantly, CPL 190.71(a)(ii) prohibits a grand jury from indicting a 15 year old for criminal possession of a weapon in the second degree under Penal Law § 265.03, unless the “firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law” (see People v. Raul A., 215 A.D.3d at 502, 187 N.Y.S.3d 32).

In this case, count 3 of the indictment, charging a violation of Penal Law § 265.03(3), failed to allege that the defendant possessed the subject weapon “on school grounds” (see People v. Raul A., 215 A.D.3d at 501–502, 187 N.Y.S.3d 32).  The reference to Penal Law § 265.03(3) did not cure the defect, because it does not include the “on school grounds” element, which is found in Penal Law § 30.00(2) and CPL 190.71(a)(ii).  Additionally, the prosecutor's statement at the plea proceeding that the possession occurred within 1,000 feet of school grounds, and the defendant's admission to the same, did not cure the defect (see People v. Raul A., 215 A.D.3d at 502, 187 N.Y.S.3d 32).  Thus, as the People correctly concede, count 3 of the indictment is jurisdictionally defective and must be dismissed (see generally People v. Tromp, 164 A.D.3d 1479, 1480, 83 N.Y.S.3d 622).

IANNACCI, J.P., CHRISTOPHER, VENTURA and HOM, JJ., concur.