PEOPLE v. MENDOZA (2022)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (David J. Kirschner, J.), rendered June 21, 2019, convicting him of course of sexual conduct against a child in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea is vacated, the superior court information is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The defendant was charged, by felony complaint, with one count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(b), and one count of endangering the welfare of a child under Penal Law § 260.10(1).  He waived indictment by a grand jury and entered a plea of guilty under a superior court information to one count of course of sexual conduct against a child in the second degree under Penal Law § 130.80(1)(a).  As the defendant contends, and the People correctly concede, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.

The single count in the superior court information was not an “offense for which the defendant [had been] held for action of a grand jury” (CPL 195.20), in that it was not an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint (see People v. Menchetti, 76 N.Y.2d 473, 477, 560 N.Y.S.2d 760, 561 N.E.2d 536;  People v. McCall, 194 A.D.3d 1197, 1197–1198, 149 N.Y.S.3d 304;  People v. Diego, 172 A.D.3d 1776, 1776–1777, 101 N.Y.S.3d 753;  People v. Chacko, 137 A.D.3d 930, 931–932, 25 N.Y.S.3d 897;  People v. Nemnom, 123 A.D.3d 740, 741, 997 N.Y.S.2d 736).  Thus, the superior court information was jurisdictionally defective.  This defect survives the defendant's failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal (see People v. Nemnom, 123 A.D.3d at 741, 997 N.Y.S.2d 736).  Accordingly, we reverse the judgment of conviction, vacate the defendant's plea of guilty, dismiss the superior court information, and remit the matter to the Supreme Court, Queens County.  If warranted, further proceedings may be had on the felony complaint in the local criminal court.

In light of the foregoing, we need not reach the defendant's remaining contention.

BARROS, J.P., MILLER, DOWLING and WARHIT, JJ., concur.