People v. Colon

Mar 7, 2005
Reporters:
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Ordered that the judgment is reversed, on the law, the plea of guilty is vacated, Superior Court information No. 7836/00 is dismissed, the felony complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the felony complaint.

The defendant was charged, by felony complaint, with criminal sale of a controlled substance in the fourth degree (see Penal Law § 220.34), criminal possession of a controlled substance in the fifth degree (see Penal Law § 220.06), and criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). The defendant executed a written waiver of indictment and consented to be prosecuted on an information charging him with criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]). The defendant pleaded guilty to that charge, and a judgment of conviction was entered against him.

As the People correctly concede, the information on which the defendant was prosecuted was jurisdictionally defective because it charged the defendant with an offense which was greater than the offenses charged in the felony complaint (see CPL 195.20; People v Zanghi, 79 NY2d 815, 817 [1991]; People v Menchetti, 76 NY2d 473, 475 [1990]). Accordingly, the conviction must be reversed. Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.