People v. D’Amico, 76 N.Y.2d 877 (1990)
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When a defendant waives indictment and consents to be prosecuted on an information, the information can only charge the offense for which the defendant was held for Grand Jury action or a lesser included offense, not a greater offense.
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Summary
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D’Amico was initially charged with fourth-degree criminal possession of stolen property and unauthorized use of a vehicle. He waived a preliminary hearing and was held for Grand Jury action. Subsequently, he waived indictment and consented to prosecution on an information charging him with third-degree criminal possession of stolen property. The New York Court of Appeals reversed his conviction, holding that the information was jurisdictionally defective because it charged a greater offense than the one for which he was initially held for Grand Jury action. The Court emphasized that the purpose of a waiver is to allow prosecution on the original charge or a lesser included offense, not to escalate the charges.
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Facts
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Defendant D’Amico was arrested and charged with:r
1. Fourth-degree criminal possession of stolen property (Penal Law § 165.45 [5]).r
2. Third-degree unauthorized use of a vehicle (Penal Law § 165.05 [1]).r
After arraignment, D’Amico waived his preliminary hearing and was held for Grand Jury action on these charges.r
Two weeks later, D’Amico waived indictment and consented to be prosecuted on an information.r
The information charged him with third-degree criminal possession of stolen property (Penal Law § 165.50), a more serious charge than the fourth-degree charge in the original complaint.r
D’Amico pleaded guilty to the third-degree criminal possession charge, and a judgment of conviction was entered.r
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Procedural History
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After his conviction, D’Amico appealed, arguing that his guilty plea should be vacated because the information was jurisdictionally defective.r
He argued that the information could not charge a greater offense than the one for which he was held for Grand Jury action.r
The Appellate Division rejected D’Amico’s argument, relying on People v. Menchetti.r
D’Amico appealed to the New York Court of Appeals.r
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Issue(s)
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Whether, when a defendant waives indictment, the subsequent information can charge an offense greater than the one for which the defendant was initially held for Grand Jury action.r
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Holding
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No, because the New York Constitution and Criminal Procedure Law limit the scope of an information following a waiver of indictment to the offense for which the defendant was held for Grand Jury action or a lesser included offense. The information cannot charge a greater offense. The court stated that the information must include at least one offense that was contained in the felony complaint.r
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Court’s Reasoning
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The Court of Appeals reasoned that the right to be prosecuted only by indictment implicates the court’s jurisdiction and cannot be waived by a guilty plea.r
The Court cited Article I, § 6 of the NY Constitution, which allows a person held for Grand Jury action to waive indictment and consent to be prosecuted on an information filed by the district attorney.r
CPL 195.20 implements this constitutional provision and requires the written waiver to designate each offense to be charged in the information. The offenses named