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The People of the State of New York v. Harry R. (Anonymous (N.Y.App.Term 03/15/2013)

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 15, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
HARRY R. (ANONYMOUS), APPELLANT.

People v Harry R.

Decided on March 15, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., and IANNACCI, J.

Consolidated appeal from (1) an amended judgment and five judgments of the District Court of Suffolk County, First District (John Iliou, J.), rendered October 28, 2010, and (2), by permission, an order of the same court dated April 7, 2011. The amended judgment revoked a sentence of probation previously imposed by the same court, upon a finding that defendant had violated the conditions thereof, upon defendant's admission, and resentenced defendant to six months' incarceration on his prior conviction of criminal possession of stolen property in the fifth degree. The judgments, respectively, convicted defendant, upon his pleas of guilty, of criminal possession of a controlled substance in the seventh degree and trespass, and dismissed a charge of criminal possession of stolen property in the fifth degree and various Vehicle and Traffic Law offenses. The order denied defendant's motion to vacate the judgment convicting him of criminal possession of a controlled substance in the seventh degree and to dismiss the accusatory instrument charging that offense as jurisdictionally defective or, in the alternative, to resentence him upon that charge as a youthful offender.

ORDERED that so much of the appeal as is from the judgments dismissing the charge of criminal possession of stolen property in the fifth degree and various Vehicle and Traffic Law offenses is dismissed, as defendant is not aggrieved thereby; and it is further,

ORDERED that so much of the appeal as is from the amended judgment of conviction and the judgment convicting defendant of trespass is dismissed as abandoned; and it is further,

ORDERED that the judgment convicting defendant of criminal possession of a controlled substance in the seventh degree and the order are affirmed.

On September 8, 2009, the People charged defendant, then 16 years old and a resident alien from Peru, with criminal possession of stolen property in the fifth degree (Penal Law § 165.40), after he admitted to a police officer that he had removed a GPS device from an automobile belonging to another person. On March 2, 2010, defendant pleaded guilty to the charge and was sentenced, as a youthful offender, to three years' probation. Ten days later, defendant was arrested and charged in separate accusatory instruments with trespass in the third degree (Penal Law § 140.10 [b]), and two charges of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) based on his possession of marihuana and Vicoprofen. The trespass charge was based on defendant's expulsion from his high school following a physical altercation and an order that he not enter upon school property, which order he was charged with violating. On July 30, 2010, defendant was again arrested and charged with criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and various Vehicle and Traffic Law offenses, based on his operation of an unregistered motor vehicle while unlicensed and uninsured, which vehicle bore a stolen license plate.

On September 22, 2010, a declaration of delinquency issued (CPL 410.30), and, on October 28, 2010, pursuant to a negotiated plea agreement, defendant admitted that he had violated the terms of his probation, whereupon the sentence of probation was revoked and he was resentenced to a term of six months' incarceration. Also pursuant to the plea agreement, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (a class A misdemeanor) based on his possession of Vicoprofen, and to trespass, a violation (Penal Law § 140.05), as reduced from trespass in the third degree. Defendant was sentenced, respectively, to a term of six months' incarceration and to a term of 15 days' incarceration, which terms were to run concurrently with the sentence imposed on the amended judgment. In satisfaction of that disposition, the remaining charges were dismissed. The plea colloquy included defendant's assertion that he understood that he could be deported as a consequence of his pleas, that he had discussed the issue with his counsel, and that he was satisfied that the plea and sentencing agreement was in his best interests. The record does not reveal that defendant sought to be adjudicated a youthful offender upon his guilty plea to criminal possession of a controlled substance in the seventh degree.

After serving his sentences, defendant was transferred to a federal juvenile detention center. On March 28, 2011, to avoid deportation, defendant moved by order to show cause to vacate the judgment convicting him of criminal possession of a controlled substance in the seventh degree and to dismiss the accusatory instrument alleging the offense as jurisdictionally defective in the absence of a supporting laboratory report, or, in the alternative, to be resentenced, in the interest of justice, as a youthful offender, with respect to the controlled substance conviction. The District Court, treating the branch of the motion seeking to resentence defendant as having been made pursuant to CPL 440.10, denied that branch of the motion and also denied the branch of the motion seeking dismissal of the accusatory instrument (see CPL 440.10 [2] [c]). This court granted defendant leave to appeal from the order, and consolidated that appeal with defendant's pending appeal from the judgments of conviction and amended judgment of conviction.

On appeal, defendant, who has been deported, addressing only the judgment convicting him of criminal possession of a controlled substance in the seventh degree and the order denying his motion to vacate that judgment, requests that the judgment be reversed and the accusatory instrument dismissed for facial insufficiency. Defendant also asks that his guilty plea to criminal possession of a controlled substance in the seventh degree be vacated, based on his failure to understand the deportation consequences of his plea agreement. In the alternative, defendant asks that this court either direct the District Court to adjudicate him a youthful offender or to so adjudicate him pursuant to this court's interest of justice jurisdiction.

The alleged jurisdictional deficiency in the instrument accusing defendant of criminal possession of a controlled substance in the seventh degree -- the absence of a laboratory report -- is, essentially, a hearsay objection (People v Kalin, 12 NY3d 225, 229 [2009]), which defendant waived by failing to move to dismiss the accusatory instrument on that ground before pleading guilty (People v Casey, 95 NY2d 254, 263 [2000]). Insofar as defendant's claim of ignorance of the deportation consequences of his plea contradicts his sworn assertions to the contrary before the District Court, it is disregarded (People v Dazzo, 92 AD3d 796 [2012]; People v Griffith, 78 AD3d 1194, 1195 [2010]; People v Bouttry, 32 Misc 3d 136[A], 2011 NY Slip Op 51470[U] [App Term, 9th & 10th Jud Dists 2011]; see also People v Rosario, 93 AD3d 605 [2012]). Moreover, defendant's failure, prior to sentencing, to request that he be adjudicated a youthful offender waived that relief (People v McGowen, 42 NY2d 905, 906 [1977]; People v Warde, 45 AD3d 879 [2007]; People v Rogers, 5 AD3d 871, 872 [2004]; People v Cox, 4 AD3d 481, 482 [2004]). We decline defendant's request that he be adjudicated a youthful offender in the interest of justice (see CPL 470.15 [6] [a]; People v Fowler-Graham, 92 AD3d 1225 [2012]; People v Watts, 91 AD3d 678 [2012]) as defendant's extensive arrest history, his failure to abide by the terms of probation, the otherwise favorable plea agreement, and the fact that defendant pleaded guilty after having been informed of the deportation consequences of the plea militate against granting that relief.

Accordingly, the judgment convicting defendant of criminal possession of a controlled substance in the seventh degree and the order are affirmed.

Nicolai, P.J., and Iannacci, J., concur. Decision Date: March 15, 2013

20130315

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