People v Helton, 2023 NY Slip Op 03554 [217 AD3d 634]

June 29, 2023

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Keenan Helton, Appellant.

Twyla Carter, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered April 25, 2017, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree and attempted criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 1 1/2 years, unanimously affirmed.

Defendant’s challenges to his original indictment, which charged his codefendant with a narcotics offense but only charged defendant with a non-narcotics offense, are academic, because that indictment was superseded by an indictment that also charged defendant himself with a narcotics offense, and thus plainly satisfied the requirements for Special Narcotics jurisdiction. Defendant’s claim that the court’s alleged lack of subject matter jurisdiction over the first indictment rendered the superseding indictment a nullity is without merit. At any time before entry of a guilty plea or commencement of trial, a prosecutor may re-present a case to the grand jury and obtain a new indictment, which supersedes the original indictment with respect to any offense charged in the new indictment (CPL 200.80; People v Cade , 74 NY2d 410, 416 [1989]). Because the Special Narcotics Prosecutor had authority to obtain an indictment charging a narcotics offense, and the superseding indictment created the appropriate subject matter jurisdiction, it is irrelevant whether or not such jurisdiction already existed under the first indictment. Concur—Kern, J.P., Moulton, Mendez, Shulman, Rodriguez, JJ..