Opinion
May 1, 2001.
Judgment, Supreme Court, New York County (Micki Scherer, J.), rendered January 5, 2000, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/2 to 5 years, unanimously reversed, on the law, the guilty plea vacated, the waiver of indictment vacated, the superior court information dismissed and the indictment reinstated.
Jaime Bachrach, for Respondent.
Luke Martland, for Defendant-Appellant.
Before: Sullivan, P.J., Mazzarelli, Ellerin, Lerner, Buckley, JJ.
As the People correctly concede, defendant's waiver of indictment and consent to be prosecuted by superior court information was invalid under CPL 195.10(2)(b) since defendant had already been indicted with respect to the same incident (see, People v. Boston, 75 N.Y.2d 585;cf., People v. D'Amico, 76 N.Y.2d 877).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.