State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 107043 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GREGORY SEALS,

Appellant.

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Calendar Date: November 24, 2015

Before: Garry, J.P., Rose, Lynch, Devine and Clark, JJ.

__________

Brian M. Quinn, Albany, for appellant.

M. Elizabeth Coreno, Special Prosecutor, Saratoga Springs,

for respondent.

__________

Garry, J.P.

Appeal from a judgment of the County Court of Saratoga

County (Scarano, J.), rendered June 20, 2014, convicting

defendant upon his plea of guilty of the crime of attempted

criminal possession of a controlled substance in the fifth

degree.

Police stopped a vehicle that defendant was driving in the

Town of Halfmoon, Saratoga County and discovered 42 grams of a

substance that field tested positive for the presence of cocaine. 

Defendant was charged in two felony complaints with criminal

possession of a controlled substance in the third degree and

criminal possession of a controlled substance in the fifth

degree. Thereafter, pursuant to a negotiated plea agreement,

defendant waived indictment, pleaded guilty to a superior court
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information (hereinafter SCI) that charged him with attempted

criminal possession of a controlled substance in the fifth

degree, and waived his right to appeal. He was sentenced as a

second felony offender to a prison term of 11⁄2 years, to be

followed by one year of postrelease supervision. Defendant

appeals.

 Defendant contends that the waiver of indictment and SCI

were jurisdictionally defective in that they did not charge an

"offense for which the defendant was held for action of a grand

jury" (CPL 195.20). Pursuant to CPL 195.20, a defendant may

waive indictment and plead guilty to an SCI that names a

different offense from that charged in the felony complaint only

when the crime named in the SCI is a lesser included offense of

the original charge (see People v Milton, 21 NY3d 133, 136

[2013]; People v Menchetti, 76 NY2d 473, 477 [1990]; People v

Gammons, 106 AD3d 1287, 1288 [2013]).1 We agree with defendant

that this requirement was not satisfied. 

"A crime is a lesser included offense of a charge of a

higher degree only when in all circumstances, not only in those

presented in the particular case, it is impossible to commit the

greater crime without concomitantly, by the very same conduct,

committing the lesser offense" (People v Baker, 123 AD3d 1378,

1380 [2014] [citations omitted]; see People v Wheeler, 67 NY2d

960, 962 [1986]). To be guilty of the offense charged in the

SCI, a defendant must attempt to "knowingly and unlawfully

possess cocaine" that weighs "[500] milligrams or more" (Penal

Law §§ 110.00, 220.06 [5]). The first felony complaint charged

defendant with criminal possession of a controlled substance in

the third degree, which requires proof of knowing, unlawful

possession of substances containing narcotic drugs that have "an

aggregate weight of one-half ounce or more" (Penal Law § 220.16

1 The provision in CPL 195.20 that permits a waiver of

indictment and an SCI to include an offense that is "properly

joinable" with a crime for which the defendant was held for the

action of a grand jury is applicable only when the SCI "also

include[s] at least one offense that was contained in the felony

complaint" (People v Zanghi, 79 NY2d 815, 818 [1991]).
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[12]). Considered in the abstract, it is possible to possess or

attempt to possess one-half ounce of a mixture of cocaine and

some other substance in which the proportion of cocaine is less

than 500 milligrams. Thus, it is possible to commit criminal

possession of a controlled substance in the third degree without

also committing attempted criminal possession of a controlled

substance in the fifth degree, and the offense charged in the SCI

is not a lesser included offense of the crime charged in the

first felony complaint.

The second felony complaint charged defendant with criminal

possession of a controlled substance in the fifth degree, which

is committed when a person "knowingly and unlawfully possesses a

controlled substance with intent to sell it" (Penal Law § 220.06

[1]). It is possible to possess cocaine with the intent to sell

it while not concurrently possessing cocaine weighing more than

500 milligrams, or attempting to do so, as required to commit the

crime charged in the SCI (see Penal Law §§ 110.00, 220.06 [5]). 

Thus, the crime charged in the SCI is not a lesser included

offense of the crime charged in the second felony complaint (see

People v Nemnom, 123 AD3d 740, 741 [2014]; People v Lee, 196 AD2d

509, 510 [1993], lv denied 82 NY2d 851 [1993]; see also People v

Betters, 113 AD3d 934, 935 [2014]). 

As the People concede, the determination that the crime

charged in the SCI is not a lesser included offense of those

named in the felony complaints renders the SCI jurisdictionally

defective, a failure that survives defendant's guilty plea and

waiver of his right to appeal (see People v Menchetti, 76 NY2d at

475 n; People v Simmons, 27 AD3d 786, 786-787 [2006], lv denied 7

NY3d 763 [2006]). Thus, defendant's plea must be vacated and the

SCI dismissed. "If warranted, further proceedings may be had on

the felony complaint in the local criminal court" (People v

Nemnom, 123 AD3d at 741). 

In light of this determination, defendant's remaining

contentions are academic. 
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Rose, Lynch, Devine and Clark, JJ., concur.

ORDERED that the judgment is reversed, on the law, and

superior court information dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court