SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

273 

KA 15-01099 

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JACOB MELVIN, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.)

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS

T. TEXIDO OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered March 18, 2015. The judgment

convicted defendant, upon his plea of guilty, of criminal possession

of a weapon in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him upon his plea of guilty under an indictment of criminal

possession of a weapon in the second degree (Penal Law § 265.03 [3]).

In appeal No. 2, defendant appeals from a judgment convicting him upon

his pleas of guilty under a superior court information (SCI) of two

counts of assault in the second degree (§ 120.05 [7]).

Preliminarily, the People correctly concede that defendant did

not validly waive his right to appeal in a written waiver of the right

to appeal, given the total absence of an oral colloquy on that subject

(see People v Banks, 125 AD3d 1276, 1277, lv denied 25 NY3d 1159). 

Nevertheless, we reject defendant’s challenge to the severity of the

sentence in appeal No. 1.

Defendant contends that the SCI in appeal No. 2 is

jurisdictionally defective because it charged him with committing two

assaults on December 3, 2014, even though he waived indictment only

with respect to two assaults committed on December 23, 2014. 

Initially, we note that “[d]efendant’s challenges to the

jurisdictional requirements of the waiver of indictment and the

superior court information need not be preserved for [appellate]

review” and are not forfeited by the guilty plea (People v Lugg, 108

AD3d 1074, 1074; see People v Boston, 75 NY2d 585, 589 n; People v
-2- 273 

KA 15-01099 

Jackson, 128 AD3d 1279, 1279, lv denied 26 NY3d 930). Here, defendant

was initially charged by felony complaint with two counts of assault

in the second degree committed on December 23, 2014, and defendant

subsequently waived his right to indictment on those particular

charges. The SCI, however, charged defendant with committing two acts

of assault in the second degree on December 3, 2014, rather than

December 23, 2014, and the special information attached to the SCI

provided that the assaults occurred on December 23, 2014. During the

plea colloquy, Supreme Court referenced both dates. 

In our view, defendant never waived his constitutional right to

indictment for any offenses taking place on December 3, 2014; rather,

he waived his constitutional right to indictment for two assaults

committed on December 23, 2014. Under these circumstances, as we

recently explained in People v Walker ([appeal No. 2] ___ AD3d ___,

___ [Mar. 24, 2017]), the SCI is jurisdictionally defective and must

be dismissed. We disagree with the People that the date-of-crime

discrepancy here may be excused or overlooked as a ministerial

typographical error. In our view, it is not “obvious” (People v June,

30 AD3d 1016, 1017, lv denied 7 NY3d 813, reconsideration denied 7

NY3d 868), nor is it “clear” (Jackson, 128 AD3d at 1279-1280), that

the date-of-crime discrepancy at issue here is in fact a mere

typographical error (see e.g. People v Siminions, 112 AD3d 974, 975,

lv denied 24 NY3d 1088). We therefore reverse the judgment in appeal

No. 2, vacate the guilty pleas, dismiss the SCI, and remit the matter

to Supreme Court for proceedings pursuant to CPL 470.45 (see People v

Mano, 121 AD3d 1593, 1593, lv dismissed 24 NY3d 1121; People v Tun

Aung, 117 AD3d 1492, 1492). 

In view of the foregoing, defendant’s remaining contentions in

appeal No. 2 are academic. 

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court