The Right to Be Prosecuted Only by Indictment Implicates the Court Jurisdiction in New York

In People v. Zanghi (79 NY2d 815, 588 NE2d 77, 580 NYS2d 179 [1991]), the Court of Appeals made clear that the right to be prosecuted only by indictment implicates the jurisdiction of the court. A defendant's claim that the court so lacked jurisdiction may be reviewed even though the defendant did not object to--or indeed even consented to--his or her prosecution on the information he or she subsequently contends was defective. Significantly, as the Court held, permitted offenses for waiver purposes include all lesser included offenses of the crime charged in the original felony complaint, but do not include other offenses which have additional aggravating elements. In Zanghi, the waiver of indictment and SCI were held invalid since defendant was charged with criminal possession of stolen property (CPSP) in the fourth degree in the felony complaint on which he was arraigned and held for grand jury action, and the SCI to which he pleaded guilty charged third degree CPSP which was neither in the felony complaint, nor a lesser included offense of fourth degree CPSP. Indeed, in Zanghi, even though the factual portion of the felony complaint contained sworn allegations sufficient to establish the additional element necessary for the higher offense, the Court made clear that the crime charged in the accusatory part of the felony complaint alone governed. (79 NY2d at 818.)