Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered March 21, 1985, convicting him of sodomy in the first degree and sexual abuse in the first degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is reversed, on the law, and S.C.I. No. W-78/85 is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury; and it is further,
By Suffolk County indictment No. 852/84 filed on or about May 21, 1984, the defendant was charged with one count of sodomy in the first degree and with one count of sexual abuse in the first degree. However, although the indictment accurately described the conduct which formed the basis for the sodomy charge, it contained an inaccurate description of the conduct underlying the sexual abuse charge. While the Grand Jury had been presented evidence and had been charged on the theory that the conduct supporting the sexual abuse count was a touching of the breasts of the victim, the sexual abuse count in the indictment did not refer to that conduct but, instead, described deviate sexual intercourse which related to the sodomy count.
Prior to the commencement of the nonjury trial on February 4, 1985, that error in the indictment was brought to the trial court’s attention. At that time, the trial court rejected the prosecutor’s request to amend the indictment, stating that it would tend to change the theory of the prosecution, but then suggested that there were two alternative ways to proceed—either re-presentation of both counts to a second Grand Jury, or preparation of a superior court information correcting the error as to the sexual abuse count. After the defendant and his counsel indicated that they had no objection to immediately proceeding by way of a superior court informa
On appeal, the defendant contends that his waiver of the indictment and prosecution by the superior court information was fatally defective. We agree. Pursuant to CPL 195.10 (2) (b), a defendant may waive indictment and consent to be prosecuted by a superior court information in "the appropriate superior court, at any time prior to the filing of an indictment by the grand jury” (emphasis added). In this case, it is uncontroverted that the indictment had been filed well before the time the defendant purportedly waived his right to proceed by way of a proper indictment. Since the statute clearly and unequivocally states that any such waiver must be made before an indictment is filed, it is readily apparent that the waiver herein was untimely and, therefore, invalid.
Support for this conclusion can be found in the recent Court of Appeals decision in People v Boston (75 NY2d 585). In Boston, the Court of Appeals held that a defendant’s waiver of indictment and consent to proceed by way of a superior court information, which was then consolidated into an already-filed indictment arising out of the same crime, was a nullity. Quoting CPL 195.10 (2) (b), the court stated that "[t]he legislature’s own chosen words * * * plainly and explicitly preclude waiver by SCI after an indictment is filed” (People v Boston, supra, at 588).
Moreover, any argument that the use of the superior court information under the circumstances of this case was a proper alternative to a re-presentation of the matter to a second Grand Jury has also been laid to rest by the decision in Boston. While recognizing that the purpose of the statute was to afford a defendant the "opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings” (People v Boston, supra, at 589), the court went on to say that "[tjhere is no indication that the Legislature also intended by the statute to authorize waiver of indictment by defendants after a Grand Jury has acted, when those same motivations are no longer present” (People v Boston, supra, at 589).
In addition, the procedure utilized by the trial court herein cannot be rationalized on the basis that the indictment herein was invalid. On the contrary, the mere fact that the sexual abuse count was defective did not render the entire indictment defective (see, CPL 210.20 [1] [a]). Thus, at the time of
The People’s further contention that the trial court should have allowed the amendment of the indictment is immaterial at this point since the issue is not properly before us on the defendant’s appeal in this case (see, CPL 470.15 [1]; People v Goodfriend, 64 NY2d 695).
Accordingly, "[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (People v Boston, supra, at 589; see also, People v Banville, 134 AD2d 116; cf., People v Mills, 154 AD2d 405). Since the proceedings herein were jurisdictionally defective, the judgment of conviction is reversed with leave granted to the People to re-present the case to another Grand Jury (see, People v Lee, 100 AD2d 357).
Although we are reversing the judgment for the reasons set forth above, we would note in passing that upon viewing the evidence adduced at the trial herein in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant’s convictions beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
The facts have been considered and are determined to have been established. Brown, J. P., Kooper and Balletta, JJ., concur.