People v. Shaver

• Decision Date: 17 January 2002
• Docket Number: 13015,3
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ROBERT E. SHAVER, Appellant. 13015 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ROBERT E. SHAVER, Appellant.

13015

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: December 14, 2001

Decided and Entered: January 17, 2002

Paul J. Connolly, Albany, for appellant.

James A. Murphy III, District Attorney (Nicholas E. Tishler of counsel), Ballston Spa, for respondent.

MEMORANDUM AND ORDER

Before: Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ.

Carpinello, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered March 31, 2001, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

After waiving indictment, defendant entered a plea of guilty to criminal contempt in the first degree pursuant to Penal Law § 215.51 (c), the sole charge contained in a superior court information. On appeal, he contends that this information, which is subject to the same rules as an indictment (see, CPL 200.15; see also, People v Fields, 208 A.D.2d 1050, lv denied 84 N.Y.2d 935), is jurisdictionally defective, an argument which is not precluded by his guilty plea or waiver of the right to appeal (see, e.g., People v Hogabone, 278 A.D.2d 525; People v George, 261 A.D.2d 711, lv denied 93 N.Y.2d 1018; People v Diaz, 233 A.D.2d 777; People v Roe, 191 A.D.2d 844). Inasmuch as the information fails to allege the labor dispute exception set forth in Penal Law § 215.50, we are constrained to conclude that it must be dismissed as jurisdictionally defective under recent precedent of this Court (see, People v Kirkham, 273 A.D.2d 509; see also, People v Peraza, ___ A.D.2d ___, 733 N.Y.S.2d 510; People v Struts, 281 A.D.2d 655; People v Hogabone, supra; People v Bingham, 263 A.D.2d 611, lv denied 93 N.Y.2d 1014; but see, People v D'Angelo, 284 A.D.2d 146).

Crew III, J.P., Peters, Spain and Mugglin, JJ., concur.

ORDERED that the judgment is reversed, on the law, and superior court information dismissed.

ENTER: Michael J. Novack Clerk of the Court