People v Maglione
2021 NY Slip Op 06775 [200 AD3d 434]
December 2, 2021
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 2, 2022


[*1]
 The People of the State of New York, Respondent,
v
John Maglione, Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Naila S. Siddiqui of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 16, 2017, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 11/2 to 3 years, unanimously reversed, on the law, and the superior court information dismissed.

As the People concede, defendant's waiver of indictment and subsequent SCI were jurisdictionally defective, because the charged crime of attempted robbery in the third degree in the SCI was not named in the misdemeanor complaint and was a greater offense than those charged therein (see CPL 195.20; People v Pierce, 14 NY3d 564 [2010]; People v Zanghi, 79 NY2d 815, 817 [1991]). The waiver of indictment was also jurisdictionally infirm because defendant, who was arraigned on a misdemeanor complaint, was not held for grand jury action (see CPL 195.10 [1]; People v D'Amico, 76 NY2d 877, 879 [1990]; People v Price, 113 AD3d 883, 884 n 2 [3d Dept 2014]). Concur—Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.