Calendar Date: November 22, 2016
Jeffrey L. Zimring, Albany, for appellant, and appellant pro
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Breslin, J.), rendered
January 17, 2014 in Albany County, convicting defendant upon
his plea of guilty of the crime of criminal possession of a
weapon in the second degree.
sold a firearm loaded with.223 caliber ammunition to a third
party on the evening of August 30, 2012. Thereafter, he was
charged in a two-count indictment with criminal possession of
a weapon in the second degree and criminal sale of a firearm
in the third degree. Defendant moved to dismiss the
indictment on multiple grounds, and Supreme Court denied the
motion. Ultimately, in August 2013, defendant accepted a plea
bargain by which he pleaded guilty to criminal possession of
a weapon in the second degree, in violation of Penal Law
§ 265.03, in full satisfaction of the indictment. The
plea agreement included a waiver of the right to appeal,
subject to specified reservations. The court sentenced
defendant in accord with the agreement to a prison term of
eight years with three years of postrelease supervision.
we find that defendant's waiver of appeal was valid. The
record reveals that Supreme Court adequately conveyed, and
defendant understood, that his right to appeal was separate
and distinct from the other trial rights forfeited by his
guilty plea (see People v Lopez, 6 N.Y.3d 248,
256-257 ; People v Handly, 122 A.D.3d 1007,
1008 ). Contrary to defendant's claim, the issues
he now seeks to raise were not among the specific matters he
reserved. In the course of his plea, defendant reserved the
right to challenge the underlying statute on the ground of
federal preemption, asserting that the statute was thus
unconstitutional, and further reserved the issue whether he
was an "authorized person" within the meaning of
Penal Law § 265.11. Upon appeal, he now asserts that he
also retained the right to appeal the issue of whether the
gun that he possessed and sold met the statutory definition
of a "firearm." This is belied by the record.
extent that defendant may be asserting that his guilty plea
was not a knowing choice, this is also unsupported by the
record. Prior to accepting defendant's plea, Supreme
Court fully outlined the terms of the plea agreement, without
objection. Criminal possession of a weapon in the second
degree requires defendant's possession of a loaded
"firearm, " which may be defined as an
"assault weapon" (Penal Law §§ 265.03
; 265.00  [e]). During the plea colloquy, defendant
admitted to his possession of an "assault weapon
with.223 caliber ammunition." As stated above, defendant
specifically reserved certain issues for appeal. The court
carefully described the various rights that defendant was
forfeiting and permitted a pause in the proceedings for
defendant to confer with his attorney. The record does not
support finding that defendant was confused in any manner as
to the terms of his plea agreement or his appeal waiver.
Instead, upon review, we find that his guilty plea was
voluntary and knowing, and we thus uphold it (see People
v Conceicao, 26 N.Y.3d 375, 382-383 ; People v
Charleston, 142 A.D.3d 1248, 1248 ; People v
Khan, 139 A.D.3d 1261, 1263 , lvs denied
28 N.Y.3d 932, 934 ).
we reject defendant's assertion that his challenge
presents a jurisdictional defect in the indictment. A
jurisdictional defect "is not subject to the
preservation rule and may not be waived" (People v
Pierce, 14 N.Y.3d 564, 570 n 2 ). However, an
"indictment is jurisdictionally defective only if the
acts alleged to have been performed by the defendant do not
constitute an actual crime" (People v Hall, 125
A.D.3d 1095, 1096  [internal quotation marks and
citation omitted]; see People v Simmons, 103 A.D.3d
1027, 1029 , lv denied 21 N.Y.3d 1009');">21 N.Y.3d 1009 ).
Defendant's challenge here, although cloaked as a
jurisdictional defect, is in fact addressed to the
evidentiary sufficiency of the indictment. It was thus
forfeited by his guilty plea (see People v Plunkett,
19 N.Y.3d 400, 405-406 ; People v Hansen, 95
N.Y.2d 227, 230-232 ; People v Cunningham, 229
A.D.2d 669, 669-670 ).
Jr., Rose, Clark and ...