SCIs and compliance with CPL § 195.10 (updated)

Felony defendants have a constitutional right to indictment by Grand Jury.  Certain violations of this constitutional right are jurisdictional in nature; thus, they serve a purported waiver and may even be raised for the first time on appeal. 

In certain cases, a defendant may waive indictment and enter a plea to a Superior Court Information.  There are four requirements, however, for this procedure: (1) it is not available if  the local criminal court accusatory instrument charged a Class A felony punishable by death or life imprisonment (i.e., not the A-I or A-II drug crimes); (2) the defendant must have been held for Grand Jury action by a local criminal court; (3) the District Attorney consents to the waiver; and (4) the various procedures (written waiver, etc.) of Article 195 have been complied with.  Regarding the second requirement, a defendant cannot be directly charged by an SCI.  In other words, it cannot be used as a substitute for a direct indictment.  A defendant may waive indictment only if he has first been charged in a local criminal court (but not a Class A felony).

Sometimes the record on appeal will be sketchy as to whether there were local criminal court proceedings.  Defendants on appeal may claim that the second requirement was not satisfied and, therefore, the purported waiver of indictment and SCI were invalid.  This was the issue raised in People v. Dennis (3d Dept. 10/1/2009).  The Third Department rejected the defendant's argument, finding that there was sufficient evidence that the defendant had been held for Grand Jury action.  First, the record indicated that the case had been transferred to County Court.  Thus, logically, it must have been transferred from a local criminal court.  Moreover, County Court's order approving the waiver and SCI indicated, albeit summarily, that CPL § 195.10 had been complied with.  These facts, coupled with the presumption of regularity accorded to judicial proceedings and the failure of the defendant to show contrary evidence, were sufficient to reject the defendant's claim on appeal.

Nevertheless, the better practice is for either the papers or, preferably, the record in Superior Court to indicate that the defendant had been held for Grand Jury action by a local criminal court.  Ideally the local criminal court should be named and a docket number provided for that underlying action.  Perhaps the prosecutor, before the waiver is executed in Superior Court, should state on the record, "Your Honor, the defendant before the court was previously charged, by felony complaint, in the local criminal court of ____, index number ____.  On ____, that court held the defendant for Grand Jury action.  Now, today, he desires to waive indictment and enter a plea to a Superior Court Information."  This simple recitation would make the record crystal clear and prevent any confusion on appeal.  (LC)

Comments

[Al O'Connor]

By a 2008 amendment to CPL section 195.10 (L.2008, chap. 401), waiver of indictment is permissible for Class A-I and A-II drug offenses.

[Larry Cunningham]

Yes - an important clarification. Defendants charged with a Class A felony are only prohibited from waiving indictment if the crime is punishable by death or life imprisonment. This, as you point out, removes the A-I and A-II drug offenses. The original post will be clarified.