PEOPLE v. VAUGHN (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered September 29, 2016, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant waived indictment and was charged in a superior court information (hereinafter SCI) with assault in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree.  He thereafter pleaded guilty to assault in the second degree in full satisfaction of the charges and waived his right to appeal.  County Court sentenced him in accordance with the plea agreement to 41/212 years in prison, to be followed by three years of postrelease supervision.  Defendant appeals.

At oral argument, defendant raised his contention that the waiver of indictment and the SCI failed to set forth a time of the offense and are thus jurisdictionally defective.  Initially, a claim of lack of jurisdiction may be raised at any time (see generally People v. Nicometi, 12 N.Y.2d 428, 431, 240 N.Y.S.2d 589, 191 N.E.2d 79 [1963] ), and such challenge is not precluded by defendant's guilty plea or his waiver of the right to appeal (see People v. Hulstrunk, 163 A.D.3d 1177, 1178 n, 79 N.Y.S.3d 397 [2018];  People v. Seals, 135 A.D.3d 985, 987, 22 N.Y.S.3d 653 [2016] ).  A waiver of indictment must be executed in strict compliance with the requirements of CPL 195.20, which provides, as pertinent here, that it shall include the “approximate time

․ of each offense to be charged in the [SCI]” (see People v. Sterling, 27 A.D.3d 950, 952, 811 N.Y.S.2d 212 [2006], lv denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ).  Although “courts may read both [the SCI and the waiver of indictment] together, as a single document, to satisfy the requirements of CPL 195.20,” it is undisputed that here neither contained any reference to the time of the offense (People v. Busch–Scardino, 166 A.D.3d 1314, 1314 n, 88 N.Y.S.3d 294 [2018] ).  Further, this is not a case “where the time of the offense is unknown, or, perhaps, unknowable so as to excuse the absence of such information” (People v. Titus, 171 A.D.3d 1256, 1256, 95 N.Y.S.3d 900 [2019] [internal quotation marks and citation omitted];  compare People v. Watt, 84 N.Y.2d 948, 950–951, 620 N.Y.S.2d 817, 644 N.E.2d 1373 [1994] ).  Indeed, a specific time was provided in the felony complaint.

We are thus constrained to reverse the judgment of conviction and dismiss the SCI (see People v. Edwards, 171 A.D.3d 1402, 1402, 97 N.Y.S.3d 538 [2019];  People v. Titus, 171 A.D.3d at 1256, 95 N.Y.S.3d 900;  People v. Colon–Colon, 169 A.D.3d 187, 192, 92 N.Y.S.3d 520 [2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 266, 124 N.E.3d 755, 2019 WL 2071116 [Apr. 16, 2019];  People v. Busch–Scardino, 166 A.D.3d at 1316, 88 N.Y.S.3d 294).  Further proceedings, if warranted, may be had on the felony complaint in the appropriate court (see People v. Seals, 135 A.D.3d at 987, 22 N.Y.S.3d 653).  Our determination renders defendant's remaining arguments academic.

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

Garry, P.J.

Mulvey, Aarons, Rumsey and Pritzker, JJ., concur.