indictment violation in New York

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2013County Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about the unrelated pending charge for purposes of impeaching his credibility caused defendant to withdraw his request to testify before the grand jury, thereby effectively depriving him of his right to testify under CPL 190.50 (5). 1 Any alleged violation of that right, however, must be raised by a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived (see CPL 190.50 [5

2013County Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about the unrelated pending charge for purposes of impeaching his credibility caused defendant to withdraw his request to testify before the grand jury, thereby effectively depriving him of his right to testify under CPL 190.50 (5). 1 Any alleged violation of that right, however, must be raised by a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived (see CPL 190.50 [5

2020Shortly after the Appellate Division rendered its decision, we held in People v Lang ( 34 NY3d 545 , 567 [2019]) that any “omission from the indictment waiver form of non- elemental factual information that is not necessary for a jurisdictionally-sound indictment is [] forfeited by a guilty plea” and “must be raised in the trial court” (id. at 569, quoting People v Milton, 21 NY3d 133 , 137 n [2013]).

2014Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “ ‘greater offense[ ], which [has] additional aggravating elements’ ” (People v Milton, 21 NY3d 133, 136 [2013], quoting People v Zanghi, 79 NY2d 815, 817 [1991]).

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2016A colloquy is not required in connection with a waiver of indictment (see generally People v Pierce, 14 NY3d 564, 567-568 [2010]) and, “even [when] the plea minutes are silent,” the “open court” execution requirement of CPL 195.20 is satisfied where, as here, the court’s order approving the indictment waiver “expressly found that defendant had executed the waiver in open court” (People v Davis, 84 AD3d 1645, 1646 [2011], lv denied 17 NY3d 815 [2011]; see People v Finster, 136 AD3d 1279, 1280 [2016], lv denied 27 NY3d 1132 [2016]).

2025A defendant seeking a speedy trial dismissal pursuant to CPL § 30.30 meets his or her initial burden on the motion by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period ( People v Reed , 151 AD3d 1821, 1821 [4th Dept. [*2]2017] internal quotations omitted).

2025A defendant seeking a speedy trial dismissal pursuant to CPL § 30.30 meets his or her initial burden on the motion by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period ( People v Reed , 151 AD3d 1821, 1821 [4th Dept. 2017] internal quotations omitted).

2014Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “ ‘greater offense[ ], which [has] additional aggravating elements’ ” (People v Milton, 21 NY3d 133, 136 [2013], quoting People v Zanghi, 79 NY2d 815, 817 [1991]).

2014Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “ ‘greater offense[ ], which [has] additional aggravating elements’ ” (People v Milton, 21 NY3d 133, 136 [2013], quoting People v Zanghi, 79 NY2d 815, 817 [1991]).

2013County Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about the unrelated pending charge for purposes of impeaching his credibility caused defendant to withdraw his request to testify before the grand jury, thereby effectively depriving him of his right to testify under CPL 190.50 (5). 1 Any alleged violation of that right, however, must be raised by a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived (see CPL 190.50 [5

2013County Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about the unrelated pending charge for purposes of impeaching his credibility caused defendant to withdraw his request to testify before the grand jury, thereby effectively depriving him of his right to testify under CPL 190.50 (5). 1 Any alleged violation of that right, however, must be raised by a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived (see CPL 190.50 [5

2010This construction of CPL 210.05 is consistent with its legislative history, which shows that the statute’s sole purpose was to implement a now-relaxed right to indictment of all crimes in all courts, not to limit the Supreme Court’s powers as against those of local courts. 4 After all, the indictment requirement to which CPL 210.05 refers is “ ‘not a limitation directed to the courts, but rather to the State, and its function is to prevent prosecutorial excess’ ” (People v Keizer, 100 NY2d 114, 119 [2003], quoting People v Ford, 62 NY2d 275, 282 [1984]; see People v Iannone, 45 NY2d 589, 594 [

2000Defendant’s claim that the court’s supplemental instruction on the elements of reckless endangerment, in which it made reference to locations outside Bronx County, constructively amended the indictment is a claim requiring preservation (People v Reed, 242 AD2d 478 , lv denied 91 NY2d 836 ; People v Perry, 226 AD2d 282 , lv denied 88 NY2d 940 ; see also, People v Ford, 62 NY2d 275 ), and we decline to review this unpreserved claim in the interest of justice.

1992Memorandum: Evaluating the circumstances of this case in light of the five factors identified by the Court of Appeals in People v Taranovich (37 NY2d 442, 445), we reject defendant’s contention that the trial court erred in denying his motion to dismiss the indictment for violation of his constitutional right to a speedy trial (see, CPL 30.20) because of preindictment delay.

1991After balancing the factors to be considered on a motion to dismiss an indictment for violation of defendant’s constitutional right to a speedy trial (see, People v Taranovich, 37 NY2d 442, 445 ), we agree that the 15-month delay in the circumstances of this case does not mandate dismissal of defendant’s indictment (see, People v Bobbitt, 155 AD2d 892 , lv denied 75 NY2d 810 ; People v White, 81 AD2d 486 , cert denied sub nom.

2010This construction of CPL 210.05 is consistent with its legislative history, which shows that the statute’s sole purpose was to implement a now-relaxed right to indictment of all crimes in all courts, not to limit the Supreme Court’s powers as against those of local courts. 4 After all, the indictment requirement to which CPL 210.05 refers is “ ‘not a limitation directed to the courts, but rather to the State, and its function is to prevent prosecutorial excess’ ” (People v Keizer, 100 NY2d 114, 119 [2003], quoting People v Ford, 62 NY2d 275, 282 [1984]; see People v Iannone, 45 NY2d 589, 594 [

1999Since defendant’s challenge to the sufficiency of the indictment is a claim of factual insufficiency, such claim is waived by defendant’s guilty plea (People v Iannone, 45 NY2d 589, 600-601 ), as well as being unpreserved and without merit.

2026Here, the date of the crime's occurrence is not an element of the charged crime, and defendant failed to show that the crime for which he was arrested and arraigned differed from that which was noted in the indictment waiver and SCI or that he was not provided adequate notice of the charged offense ( see People v Perry , 235 AD3d at 1042; People v Johnson , 223 AD3d 571 , 571-572 [1st Dept 2024], lv denied 42 NY3d 927 [2024]; People v King , 184 AD3d 909, 910 [3d Dept 2020]).

2023The Court of Appeals has held that "[t]he clear intention of [the drafters of CPL 210.35] was to establish a rule of automatic dismissal [of an indictment] for a limited number of improprieties that were deemed most serious"—including, inter alia, "the specific defect[] delineated in" CPL 210.35 (1) ( People v Williams , 73 NY2d 84, 90-91 [1989] [emphasis added]; see also People v Perry , 199 AD2d 889, 891 [3d Dept 1993], lv denied 83 NY2d 856 [1994]).

2023The Court of Appeals has held that "[t]he clear intention of [the drafters of CPL 210.35] was to establish a rule of automatic dismissal [of an indictment] for a limited number of improprieties that were deemed most serious"—including, inter alia, "the specific defect[] delineated in" CPL 210.35 (1) ( People v Williams , 73 NY2d 84, 90-91 [1989] [emphasis added]; see also People v Perry , 199 AD2d 889, 891 [3d Dept 1993], lv denied 83 NY2d 856 [1994]).

2020Nevertheless, defendant argues that the amendment here was impermissible because it constructively amended the indictment in violation of CPL 200.70 (2), which provides that "[a]n indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it." However, "[i]t is well settled that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged" ( People v Osinowo , 28 AD3d 1011, 1013 [2006] [internal quotation marks and citation

2020Nevertheless, defendant argues that the amendment here was impermissible because it constructively amended the indictment in violation of CPL 200.70 (2), which provides that "[a]n indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it." However, "[i]t is well settled that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged" ( People v Osinowo , 28 AD3d 1011, 1013 [2006] [internal quotation marks and citation

2020Defendant failed to preserve for our review his further contention that the failure of County Court to advise him that he could be subject to deportation if he pleaded guilty renders his plea involuntary ( see CPL 470.05 [2]; People v Peque , 22 NY3d 168, 183 [2013], cert denied 574 US 840 [2014]).

2020Because defendant's contention is that the indictment waiver form omitted "non-elemental factual information," that contention is "forfeited by [his] guilty plea" inasmuch as defendant "lodges no claim that he lacked notice of the precise crime[] for which he waived prosecution by indictment" ( People v Thomas , — NY3d &mdash, &mdash, 2019 NY Slip Op 08545 , *8 [2019]; see People v Ramirez , 180 AD3d 1378, 1378 [4th Dept 2020]).