The People of the State of New York v. Jose Perez
Attorneys and Parties
Brief Summary
Criminal procedure—validity of a waiver of indictment for prosecution by superior court information (SCI) and the 'open court' signature requirement.
The Supreme Court, Bronx County, accepted defendant’s guilty plea to third-degree burglary under an SCI and sentenced him, as a second felony offender, to 2–4 years, and issued a final order of protection.
The judgment of conviction was reversed, the guilty plea vacated, and the case remanded.
The waiver of indictment was invalid because the record did not show that defendant signed the written waiver in open court in the presence of counsel as required by NY Constitution, art I, § 6 [requires that a defendant may proceed by superior court information only upon a written waiver of indictment signed in open court in the presence of counsel] and CPL 195.20 [sets forth the procedure for waiver of indictment, including the open-court, in-counsel presence signing requirement]. This defect is jurisdictional and survives a guilty plea and appeal waiver.
Background
Defendant pleaded guilty to third-degree burglary under SCI No. 40/21. The indictment waiver was dated February 3, 2021—the same date the SCI issued—yet there was no appearance in the case on that date. The court’s later description suggested the waiver was signed before the plea date. The record did not clearly demonstrate the 'open court' signing in counsel’s presence.
Lower Court Decision
Supreme Court, Bronx County (Poust-Lopez, J., at plea; Lieb, J., at sentencing) accepted the plea, adjudicated defendant a second felony offender, sentenced him to 2–4 years, and issued a final order of protection.
Appellate Division Reversal
The Appellate Division reversed the judgment, vacated the plea, and remanded for further proceedings due to an invalid waiver of indictment. The court deemed the challenge to the final order of protection moot in light of the vacatur but directed that the order remain in force pending further proceedings. It did not reach the argument that the plea was unknowing or involuntary.
Legal Significance
Strict compliance with the constitutional and statutory 'open court' signing requirement for indictment waivers is indispensable to a valid SCI prosecution. Failure to demonstrate on the record that the waiver was signed in open court in the presence of counsel is a jurisdictional defect that survives a guilty plea and appeal waiver and requires reversal.
When proceeding by SCI, ensure the record clearly shows the defendant signed the written waiver of indictment in open court in counsel’s presence; an ambiguous or inferential record renders the waiver invalid and mandates vacatur of the conviction.