Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that “the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held.” So does the Court rule for Mr. Hernandez? No. The Court explained that
the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus “may presume that the matter was properly before that court” (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).
But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that “the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court.” there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.
