PEOPLE v. McGREGOR (2007)

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered July 10, 2006, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with burglary in the third degree.   Defendant thereafter pleaded guilty to this crime, waived his right to appeal and was sentenced to five years of probation.   Subsequently, defendant admitted to violating the terms of his probation on two separate occasions, for which County Court directed him to serve time in jail to be followed by the resumption of his probation.   When defendant admitted to his third probation violation, however, County Court revoked his probation and sentenced him to a prison term of 1 to 3 years on the underlying crime.   Defendant appeals.

Defendant contends that his waiver of indictment was invalid and that County Court lacked jurisdiction to revoke his probation and sentence him to time in prison on the underlying crime.   Based upon our review of the record and the District Attorney's concession that the proper procedure for obtaining the waiver of indictment was not followed, we agree.   Although defendant orally stated during the proceedings before County Court that he was willing to give up his right to have his case presented to the grand jury, there is no indication that the written waiver of indictment was signed by defendant in open court in the presence of counsel, as required by N.Y. Constitution, article I, § 6 (see People v. Donnelly, 23 A.D.3d 921, 922, 804 N.Y.S.2d 459 [2005] ).   In view of this jurisdictional defect, defendant's guilty plea must be vacated and the matter remitted to County Court for further proceedings (see id. at 922, 804 N.Y.S.2d 459).   Any speedy trial issues should be raised before County Court upon remittal.

ORDERED that the judgment is reversed, on the law, plea vacated and matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision.