The People v. Zaquan Walley

T
State of New York                                                MEMORANDUM
Court of Appeals                                            This memorandum is uncorrected and subject to
                                                          revision before publication in the New York Reports.




 No. 108 SSM 26
 The People &c.,
         Appellant,
      v.
 Zaquan Walley,
         Respondent.




 Submitted by Peter H. Willis, for appellant.
 Submitted by Matthew C. Hug, for respondent.




 MEMORANDUM:

          The order of the Appellate Division should be reversed and the case remitted to that

 Court for consideration of facts and issues raised but not determined on the appeal to that

 Court.

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                                            -2-                                  SSM No. 26

       The People appeal from an order of the Appellate Division, which unanimously

reversed, on the law, a judgment of County Court, convicting defendant Zaquan Walley

upon a plea of guilty of second-degree criminal possession of a weapon. The Appellate

Division dismissed the Superior Court information and remitted the matter to County Court

for further proceedings, holding that the waiver of indictment form was defective for failure

to include the approximate time of the crime charged.

       Shortly after the Appellate Division rendered its decision, we held in People v Lang

(34 NY3d 545, 567 [2019]) that any “omission from the indictment waiver form of non-

elemental factual information that is not necessary for a jurisdictionally-sound indictment

is [] forfeited by a guilty plea” and “must be raised in the trial court” (id. at 569, quoting

People v Milton, 21 NY3d 133, 137 n [2013]). The time of incident is not an element of

second-degree criminal possession of a weapon (Penal Law § 265.03 [2]), and defendant

was on notice of the crime charged. Therefore, Lang controls. Accordingly, we reverse the

Appellate Division order and remit. Defendant’s additional arguments in support of an

affirmance, which were raised, but not reached by the Appellate Division, should be

considered by that Court in the first instance upon remittal.




On review of submissions pursuant to section 500.11 of the Rules, order reversed and
case remitted to the Appellate Division, Third Department, for consideration of facts and
issues raised but not determined on the appeal to that Court. Chief Judge DiFiore and
Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.


Decided December 22, 2020


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