Opinion
March 28, 1991
Appeal from the County Court of Washington County (Berke, J.).
On December 4, 1987 defendant was indicted and charged with two counts of murder in the second degree and one count of manslaughter in the first degree. Thereafter, on March 16, 1989, defendant was permitted to waive Grand Jury presentment and plead guilty to a superior court information charging him with attempted assault in the second degree arising out of the same transactions for which he was indicted in December 1987. At that time the indictment was dismissed. Defendant now appeals from his conviction claiming that County Court erred in its plea allocution. For the reasons that follow, we need not rule on defendant's contentions.
It is now well settled that a defendant may not waive prosecution by indictment after an indictment has been filed by a Grand Jury (e.g., People v Boston, 75 N.Y.2d 585; People v Thomasula, 158 A.D.2d 126, lv granted 76 N.Y.2d 897; People v Cook, 93 A.D.2d 942). Accordingly, a superior court information filed as a result of such a purported waiver is jurisdictionally defective and this court must reverse even though the precise issue was not formally raised before County Court (see, People v Banville, 134 A.D.2d 116).
Judgment reversed, on the law, and superior court information dismissed. Casey, J.P., Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.