In People v. Zanghi, (79 NY2d 815, 588 NE2d 77, 580 NYS2d 179 [1991]), the defendant had been charged by felony complaint with criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the third degree.

He had waived a hearing on the complaint, and had been held by the arraignment court for grand jury action with respect to those charges.

He then waived prosecution by indictment by a document naming the charge of criminal possession of stolen property in the third degree, and pleaded guilty to a one-count superior court information charging that crime.

The Court of Appeals concluded that the waiver of indictment and guilty plea were accepted without jurisdiction because the defendant had not been held for grand jury action with respect to the third degree charge. (79 NY2d at 816-818.)

In so concluding, the Court notably rejected as immaterial the prosecution's contention that the factual averments in the felony complaint had supported the third degree theory.

Even were this so, the Court wrote, "since the crime charged in the accusatory part of the felony complaint was fourth degree criminal possession, any allegations tending to prove that additional element were mere surplusage and their sufficiency need never have been considered by the arraigning court. Consequently, it cannot be said, in any sense, that the higher crime of third degree criminal possession was an 'offense for which the defendant was held for action of a grand jury' (CPL 195.20)." (Id. at 818.)