People v. Lucas

200 A.D.2d 414, 608 N.Y.S.2d 801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Max Sayah, J.), rendered February 13, 1992, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him, as a second felony offender, to a term of 2 Vi to 5 years, unanimously reversed on the law, the plea vacated and the case remitted to Supreme Court for further proceedings.

The initial complaint charged defendant with rape in the third degree (a class E felony), sodomy in the third degree (a class E felony), sexual misconduct (a class A misdemeanor), and endangering the welfare of a child (a class A misdemeanor). At the plea, defendant agreed to waive prosecution by indictment and plead guilty to one count of sexual abuse in the first degree, a class D violent felony. As the People concede, because the information to which defendant pleaded guilty contained only an offense greater than those charged in the original felony complaint and not presented to the Grand Jury, the plea must be vacated and the information dismissed (People v Zanghi, 79 NY2d 815), and the matter remanded to Supreme Court for further proceedings on the felony complaint. Concur — Carro, J. P., Ellerin, Kupferman and Ross, JJ.