People v. Williams

¶1(concurring). The critical issue on this appeal arises not from this court’s previous decision in People v Ford (91 AD2d 589), but rather from the decision of the Court of Appeals in People ex rel. Gray v Tekben (57 NY2d 651, affg 86 AD2d 176), which this court found controlling in Ford. In People ex rel. Gray v Tekben (supra), a habeas corpus proceeding, the Appellate Division, Second Department, held that an indictment confers on a criminal court subject matter jurisdiction only with regard to the crimes charged or lesser included offenses, and that it was a nonwaivable jurisdictional defect to convict a defendant of a crime not charged in the indictment and not a lesser included offense. Accordingly, the Appellate Division sustained the writ of habeas corpus to the extent of vacating petitioner’s conviction on the assault in the third degree charge that was found not to have been a lesser included offense of any crime charged in the indictment. The Court of Appeals affirmed, agreeing that the assault in the third degree charge was in fact not a lesser included count of any crime charged in the indictment, and went on to say (at p 653): “Petitioner’s detention is premised on an invalid verdict and is, therefore, unlawful.” If the criminal court lacks subject matter jurisdiction with regard to an offense not charged in an indictment, and not a lesser included offense of a charged crime, a disturbing conceptual problem is clearly raised as to whether such a jurisdictional defect may be deemed cured because the invalid count was submitted at the request of the defendant. On the other hand, it is difficult to accept the notion that a verdict must be set aside which was rendered on a count submitted at the specific request of the defendant, with an obvious view of securing a trial advantage that was in fact secured. Recognizing that there is no obvious answer to the conceptual problem presented, I agree with the court that the common sense of the situation mandates affirmance. (Cf. People v Foster, 19 NY2d 150; People v Griffin, 7 NY2d 511.)