People v. Johnson , 187 A.D.2d 990 ( 1992 )

Order unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: In 1978 defendant was convicted of robbery in the second degree. The judgment of conviction was entered upon defendant’s guilty plea, after defendant had executed a waiver of indictment and consented to be prosecuted on a Superior Court Information. Defendant had not been held for Grand Jury action with respect to the charge, as required by the constitutional and statutory provisions governing waiver of indictment (see, NY Const, art I, § 6; CPL 195.10 [1] [a]). Therefore, his waiver was ineffective and the information on which he was prosecuted was jurisdictionally defective (see, People v Zanghi, 79 NY2d 815; People v Boston, 75 NY2d 585).

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v McGuire, 5 NY2d 523, 527; People v Scott, 3 NY2d 148, 152)” (People v Harper, 37 NY2d 96, 99). Infringement of defendant’s right to be prosecuted by indictment deprived the court of jurisdiction to try and punish him (see, People v Zanghi, supra, at 817; People v Boston, supra, at 587; People ex rel. Battista v Christian, 249 NY 314, 318). As a consequence, defendant’s robbery conviction is a nullity (see, People v Miles, 289 NY 360, 364; People ex rel. Battista v Christian, supra; People v Sledge, 90 AD2d 588, 589, lv denied 58 NY2d 977).

Because defendant’s 1978 conviction is jurisdictionally defective, there is no basis for a determination that he is a second violent felony offender (see, Penal Law § 70.04). Therefore, defendant’s motion to set aside his sentence upon the ground that he was improperly sentenced as a second violent felony offender should have been granted (see, CPL 440.20 [1]), and the matter is remitted for resentencing.

Defendant’s motion to vacate the judgment of conviction upon the ground that he was denied effective assistance of counsel was properly denied (see, CPL 440.10 [2] [c]; People v Cooks, 67 NY2d 100). (Appeal from Order of Supreme Court, Erie County, Wolfgang, J. — CPL 440.) Present — Callahan, J. P., Green, Balio, Davis and Doerr, JJ.