People v. Wright

112 A.D.2d 38, 490 N.Y.S.2d 943, 1985 N.Y. App. Div. LEXIS 50683

Opinions

Judgment reversed, on the law, and indictment dismissed, with leave to the People to resubmit the charges to another Grand Jury. Memorandum: The indictment charging defendant with burglary in the third degree in violation of Penal Law § 140.20 alleged that defendant "knowingly entered or remained in a building, to wit, 19 Henry Street, with intent to commit a crime therein”, thus omitting the allegation that the entry was unlawful, a necessary element of the crime. That defendant challenges the indictment on this ground for the first time on appeal is of no moment. "It is a fundamental and nonwaivable jurisdictional prerequisite that an [indictment] state the crime with which defendant is charged * * * [and that] every element of the offense charged and the defendant’s commission thereof must be alleged (CPL 100.40, subd 1, par [c]; 100.15, subd 3)” (People v Hall, 48 NY2d 927; see also, People v Iannone, 45 NY2d 589). In view of the omission of this fundamental element, the judgment of conviction must be reversed and the indictment dismissed.

All concur, except Callahan, J., who dissents and votes to affirm the judgment, in the following memorandum.