PEOPLE v. QUARCINI

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the plea is vacated, the superior court information is dismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.

Memorandum: We agree with defendant that a lesser included offense for purposes of CPL 195.20 must fall within the definition of that term set forth in CPL 1.20 (37) ( see People v. Menchetti, 76 N.Y.2d 473, 477). Thus, we further agree with defendant that the superior court information upon which he was prosecuted is jurisdictionally defective and must be dismissed ( see People v. Zanghi, 79 N.Y.2d 815, 816-817). As relevant here, defendant was charged by felony complaint with criminal possession of stolen property in the third degree (Penal Law § 165.50). He thereafter waived indictment and pleaded guilty to a superior court information, charging him with criminal possession of stolen property in the fourth degree (§ 165.45 [5]). Criminal possession of stolen property in the fourth degree under subdivision (5) of section 165.45 is not a lesser included offense of criminal possession of stolen property in the third degree within the meaning of CPL 1.20 (37). The lesser offense has a unique element, i.e., the property stolen must consist of a motor vehicle, and thus it is possible to commit the greater offense without by the same conduct committing the lesser offense ( see People v. Glover, 57 N.Y.2d 61, 63).

The People nevertheless contend that the superior court information is not jurisdictionally defective because the offense charged therein shares common elements of law and fact with the offense charged in the felony complaint ( see People v. Johnson, 89 N.Y.2d 905, 907-908; People v. Pitts, 305 A.D.2d 1097). We reject that contention. The principle upon which the People rely applies "[f]or plea purposes only" (Johnson, 89 N.Y.2d at 907; see People v. Keizer, 100 N.Y.2d 114, 118-119). In contrast, "[a] waiver of indictment and a departure from the constitutional safeguard and procedural sine qua non is available . . . only within the express authorization of the governing constitutional and statutory exception" ( People v. Trueluck, 88 N.Y.2d 546, 549). There is no express authorization for a superior court information to charge a crime that shares only common elements of law and fact with the crime charged in the felony complaint.

We therefore reverse the judgment, vacate the guilty plea, dismiss the superior court information, and remit the matter to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.