Opinion
1038 KA 17–01708
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Taneika KERCE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea and waiver of indictment are vacated, the superior court information is dismissed, and the matter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting her upon a plea of guilty of attempted robbery in the third degree ( Penal Law §§ 110.00, 160.05 ), defendant contends that her waiver of indictment is jurisdictionally defective because it did not contain the "approximate time" of the offense ( CPL 195.20 ). We agree. A jurisdictionally valid waiver of indictment must contain, inter alia, the "approximate time" of each offense charged in the superior court information (SCI) (id.; see People v. St. Denis, 177 A.D.3d 1311, 1311, 110 N.Y.S.3d 373, 2019 WL 5851009 [Nov. 8, 2019] [4th Dept. 2019] ). "The law demands strict and literal compliance with the constitutional and statutory framework for waiving indictment" ( People v. Colon–Colon, 169 A.D.3d 187, 188, 92 N.Y.S.3d 520 [4th Dept. 2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 266, 124 N.E.3d 755 [2019] ). " ‘[S]ubstantial compliance [with CPL 195.20 ] will not be tolerated’ " ( id. at 191, 92 N.Y.S.3d 520 ) because "compliance with [its] literal terms ... is the sine qua non of the voluntariness of an indictment waiver" ( id. at 193, 92 N.Y.S.3d 520 ). Here, as the People correctly concede, the waiver of indictment does not contain the approximate time of the offense (see St Denis, 177 A.D.3d at 1311, 110 N.Y.S.3d 373 ). Moreover, we note that 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, 1257, 95 N.Y.S.3d 900 [3d Dept. 2019] ). Therefore, we reverse the judgment, vacate the plea and waiver of indictment, dismiss the SCI, and remit for proceedings pursuant to CPL 470.45 (see Colon–Colon, 169 A.D.3d at 193–194, 92 N.Y.S.3d 520 ).
In light of the foregoing, defendant's remaining contention is academic.