People v. Wright

Callahan, J. (dissenting).

I would affirm. Defendant maintains that the failure of the indictment to allege "unlawfulness”, one of the elements contained in the statutory definition of burglary (Penal Law § 140.20), creates a nonwaivable jurisdictional defect that requires reversal. The Court of Appeals disagrees (see, People v Cohen, 52 NY2d 584).

The right to indictment by a Grand Jury before being tried for an infamous crime is explicitly guaranteed by NY Constitution, article I, § 6 (People v Iannone, 45 NY2d 589, 593). CPL 200.50 (7) (a) mandates that an indictment contain a plain and…