Sometime in January 2005, the defendant allegedly engaged in a sexually explicit textual internet communications with an undercover police officer posing as a 14-year-old girl. In June 2006, the defendant purportedly waived indictment and entered a plea of guilty to the sex crime of attempted rape in the third degree in satisfaction of a Superior Court information, which also charged two counts of attempted disseminating indecent material to a minor in the first degree. The transcript of the plea hearing disclosed that there was a pending indictment, at the time of the waiver and plea. That criminal indictment charged the defendant with two counts of attempted disseminating indecent material to minors in the first degree, arising out of the January 2005 textual internet communications. At the plea hearing, the People stated that the defendant’s plea was also in satisfaction of the indictment and moved for its dismissal, which motion was granted by the County Court. Shortly after the defendant’s plea, and prior to the imposition of sentence, the Court issued its decision and order, holding that the offense or criminal act of disseminating indecent material to a minor in the first degree required the communication of visual sexual images, and not merely sexually explicit text. The defendant then moved pursuant to CPL 220.60 (3) to withdraw his guilty plea and to dismiss the Superior Court Information pursuant to CPL 210.20. The County Court granted the defendant’s motion on the ground that there were insufficient factual allegations to support any of the counts in the Superior Court Information. A weapon was not involved.
On appeal, it was found that the Superior Court information was properly dismissed, albeit for a different reason. The order was modified, on the law, by adding a provision thereto reinstating the indictment, and, as so modified, the order was affirmed, and the matter was remitted to the County Court of Suffolk County, for further proceedings on the indictment.
In the landmark case of People v Kozlow in 2007, the Court of Appeals reversed the Court’s decision and order, holding that a defendant could be convicted under Penal Law former § 235.22, which was applicable to the defendant’s conduct here, even though his or her communications contained no nude or sexual images. Applying the statutory interpretation employed by the Court of Appeals in that case, the two counts of attempted disseminating indecent material to a minor in the first degree are, by definition, supported by legally sufficient allegations. However, based on the records of the case, the procedure utilized by the County Court and the People in securing the defendant’s plea of guilty was in contravention of article 195 of the CPL and the holding of the Court of Appeals in the case of People v Boston in 1990. CPL 195.10 (2) (b) specifically provides authority for a defendant’s waiver of an indictment and entry of a plea under a Superior Court information in a superior court only prior to the filing of an indictment by the grand jury. According to the Court of Appeals, in the case of People v Boston, the failure to adhere to this statutory procedure was jurisdictional, affecting the organization of the court or the mode of proceedings prescribed by law. The Court there held that the waiver and the plea made in satisfaction of the relevant Superior Court information had to be nullified. Clearly, the defendant’s waiver of indictment here was similarly a nullity, and the Superior Court Information was thus properly dismissed. Since the defendant’s waiver of indictment was jurisdictionally defective, the subject indictment must be reinstated, and the matter must be remitted to the County Court of Suffolk County, for further proceedings on the indictment. The People’s remaining contention was without merit.
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