People v. Solomon

203 A.D.3d 1468

166 N.Y.S.3d 282

The PEOPLE of the State of New York, Respondent,

v.Yermia SOLOMON, Also Known as Jeremy Solomon, Appellant.

112441

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2022

Decided and Entered: March 31, 2022

Law Offices of Michael Mullen, New York City (Leopold Gross of counsel), for appellant.

Meagan K. Galligan, District Attorney, Monticello (Lisa M. Bondarenka of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Colangelo and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J.

Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered August 10, 2018, convicting defendant upon his plea of guilty of the crime of endangering the welfare of a child.

Defendant was charged by indictment with criminal sexual act in the third degree (three counts), rape in the third degree (two counts) and official misconduct¹ stemming from allegations that, on November 13, 2016, defendant, then a 24–year–old police officer, engaged in oral sexual conduct with a 15–year–old victim. Although the victim was born on March 13, 2001, the charges in the indictment incorrectly stated that her date of birth was June 2, 1999, thereby indicating that the victim was over the age of 17 at the time of the alleged offenses. The People twice moved to amend the indictment to correct the victim's date of birth (see CPL 200.70[1] ). County Court granted the People's second motion on the grounds that such error was typographical in nature and that the People did not fail to allege every element of the crimes charged in the indictment or alter the theory of prosecution.

Subsequently, in full satisfaction of the amended indictment, which was consolidated with a superior court information for the purposes of a plea agreement (see CPL 200.20 ), defendant agreed to be prosecuted by the aforementioned superior court information charging him with endangering the welfare of a child. However, the superior court information repeated the same error that existed in the indictment prior to its amendment, incorrectly stating the victim's date of birth to be June 2, 1999, thereby making her over the age of 17 at the time of the alleged offenses. Defendant entered a guilty plea to endangering the welfare of a child and waived his right to appeal. Pursuant to the plea agreement, defendant was sentenced to three years of probation. Defendant appeals.

We find merit to defendant's argument, which survives his unchallenged appeal waiver and is not subject to preservation rules (see People v. Coss, 178 A.D.3d 25, 27, 111 N.Y.S.3d 137 [2019] ; People v. Chaney, 160 A.D.3d 1281, 1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ), that the superior court information was jurisdictionally defective. A superior court information is jurisdictionally defective "if it does not effectively charge the defendant with the commission of a particular crime – for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" ( People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; accord People v. Chaney, 160 A.D.3d at 1283, 76 N.Y.S.3d 257 ; see People v. Slingerland, 101 A.D.3d 1265, 1266, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). "While it is true that the incorporation [in a superior court information] by specific reference to the statute operates without more to constitute allegations of all the elements of the crime[,] ... such reference may be negated ... by the inclusion of conduct [or a specific allegation] that does not constitute the crime charged" ( People v. Boula, 106 A.D.3d 1371, 1372, 966 N.Y.S.2d 259 [2013] [internal quotation marks, brackets and citations omitted], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] ; see People v. Chaney, 160 A.D.3d at 1283, 76 N.Y.S.3d 257 ; People v. Hurell–Harring, 66 A.D.3d 1126, 1128 n. 3, 887 N.Y.S.2d 317 [2009] ).

Here, the superior court information specifically cited and charged defendant with endangering the welfare of a child under Penal Law § 260.10(1), which provides that "[a] person is guilty of endangering the welfare of a child when ... [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" ( Penal Law § 260.10[1] ). However, the superior court information also alleged that, "[o]n or about November 13, 2016, ... the defendant ... did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old, ... having a date of birth of 6/2/1999, by engaging in oral sexual conduct with" the victim. Inasmuch as the offense of endangering the welfare of a child requires that the victim be less than 17 years old, we find that the superior court information was jurisdictionally defective because it failed to effectively charge defendant with the commission of a crime where the date of birth indicated that the victim was 17 at the time of the offense (see People v. D'Angelo, 98 N.Y.2d at 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 ; People v. Boula, 106 A.D.3d at 1372, 966 N.Y.S.2d 259 ; People v. Slingerland, 101 A.D.3d at 1266, 955 N.Y.S.2d 690 ; People v. Hines, 84 A.D.3d 1591, 1591–1592, 922 N.Y.S.2d 828 [2011] ). Accordingly, the superior court information must be dismissed.

Although such error was replicated from the original indictment that was amended on motion by order of County Court, we also find merit in defendant's argument that the People's efforts to cure the jurisdictional defect in the indictment were not authorized by the terms of CPL 200.70. This argument is preserved for our review because defendant opposed the People's application to amend (compare People v. Lamont, 125 A.D.3d 1106, 1 N.Y.S.3d 870 [2015], lv denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015] ). Further, inasmuch as the "amendment implicates a fundamental defect and purportedly converted a facially insufficient accusatory instrument into...