In this Criminal case, the defendant moves to dismiss the superior court information in this matter pursuant to section 210.20 of the Criminal Procedure Law on the ground that the information charges an offense other than the one for which he was held by the Long Beach City Court for action of the grand jury.
This matter was previously the subject of consideration by this Court in relation to a motion to amend the superior court information. In its decision on the former motion this Court expressed the view that under the provisions of the recent amendment to the New York State Constitution a person may only waive indictment and consent to be prosecuted by superior court information in relation to the charge in the local criminal court for which that person was held for grand jury action.
This precise issue, however, could not be decided on the previous motion and it required this motion to dismiss to place the question squarely before the Court.
It is undisputed that the defendant herein was charged in the local court with grand larceny in the third degree and that he was held for grand jury action in relation to that charge. The superior court information, however, does not charge that offense but, rather, charges grand larceny in the second degree, manifestly, a higher degree of the crime of larceny.
The District Attorney, in opposing this motion, does not dispute the validity of the court's position in its previous decison. court's position in its previous decision. terms of the legislative enactments which implemented the constitutional amendment the waiver of indictment and the superior court information 'may include any offense for which the defendant was held for action of a grand jury and any offense of offenses properly joinable therewith' pursuant to sections 200.20 and 200.40 of the Criminal Procedure Law.
As was previously pointed out by this Court on the former motion, serious doubt exists concerning the validity of the statutes permitting the inclusion of joinable offenses in view of the narrow scope of the constitutional provision pertaining to waiver of indictment.
Indeed, in view of the plain and precise language of the constitutional amendment it may even be argued that the implementing statutes, at least in relation to the waiver of an indictment, may have been unnecessary since the constitutional provisions would appear to be self-executing.
To Be Cont...