Calendar Date: April 28, 2017
M. Quinn, Albany, for appellant.
Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of
counsel), for respondent.
Before: Garry, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Saratoga County
(Sypniewski, J.), rendered August 24, 2015, convicting
defendant upon his plea of guilty of the crimes of burglary
in the first degree and burglary in the second degree.
November 2014, defendant was charged in an eight-count
indictment, as amplified by a bill of particulars, with
burglary in the first degree and other violent crimes
stemming from his invasion of an apartment in the middle of
the night, during which he assaulted the female occupant. In
June 2015, defendant was charged in a superior court
information with burglary in the second degree related to
another home invasion. Pursuant to a joint plea agreement
resolving all charges, defendant pleaded guilty to burglary
in the first degree under count 2 of the indictment, and also
waived indictment and pleaded guilty to burglary in the
second degree as charged in the superior court information.
The plea agreement required that defendant waive his right to
appeal, and he admitted his status as a second felony
offender. Consistent with the agreement, County Court imposed
a prison sentence of 25 years with five years of postrelease
supervision on the first degree burglary conviction and a
five-year prison sentence with five years of postrelease
supervision on the second degree burglary conviction, the
sentences to be served consecutively. Defendant appeals.
affirm. Initially, contrary to defendant's claim, the
plea colloquy and the signed waivers demonstrate that he
knowingly, intelligently and voluntarily waived the right to
appeal his conviction and sentence (see People v
Lopez, 6 N.Y.3d 248, 256 ; People v
Peterson, 147 A.D.3d 1148, 1149 ). More
specifically, the record reflects that, as to each
conviction, an appeal waiver was recited as a condition of
the plea agreement, County Court explained its meaning and
made clear its separate and distinct nature and defendant
indicated that he understood and accepted this condition.
Defendant then signed separate written appeal waivers in open
court after conferring with counsel and assuring the court
that he understood them (see People v Lewis, 143
A.D.3d 1183, 1185 ), which he reaffirmed at sentencing.
Given the valid appeal waivers, defendant is precluded from
challenging the agreed-upon sentence as harsh and excessive
(see People v Peterson, 147 A.D.3d at 1149).
challenge to his guilty plea survives his waivers of appeal
but was not preserved by an appropriate postallocution motion
despite a reasonable opportunity to do so (see CPL
220.60 ; People v Williams, 27 N.Y.3d 212, 214
; People v Peterson, 147 A.D.3d at 1149).
Further, defendant made no statements during the plea
allocution that cast doubt upon his guilt or otherwise called
into question the voluntariness of his plea so as to trigger
the narrow exception to the preservation requirement (see
People v Lopez, 71 N.Y.2d 662, 665-666 ;
People v Lewis, 143 A.D.3d at 1185). Were we to
address this claim, we would find that, contrary to
defendant's argument, County Court advised him during the
plea allocution that he would be waiving, among other rights,
his right to present defenses, which he indicated he
understood, and he acknowledged that he was pleading guilty
because he was, in fact, guilty, thereby establishing the
knowing, voluntary and intelligent nature of his plea
(see People v Haffiz, 19 N.Y.3d 883, 884 ;
People v Khan, 139 A.D.3d 1261, 1264 n 3 ,
lvs denied 28 N.Y.3d 932, 934 ).
ineffective assistance of counsel claim survives his waivers
of appeal to the extent that it impacts upon the
voluntariness of his guilty plea, but is similarly
unpreserved for our review in the absence of an appropriate
postallocution motion (see People v Lewis, 143
A.D.3d at 1185). In any event, defense counsel made
appropriate pretrial challenges to the grand jury proceedings
and indictment and contested the admissibility of
defendant's statements to police, in addition to securing
a favorable plea deal, and defendant indicated during the
plea allocution that he was satisfied with counsel's
representation. Accordingly, were we to address this claim,
we would find that there is nothing in the record that calls
into question counsel's effectiveness (see People v
Hall, 147 A.D.3d 1151, 1152 ; People v
Oddy, 144 A.D.3d 1322, 1324 ). Defendant's
claims that refer to matters outside of the record, such as
what counsel advised him, are more properly raised in a CPL
article 440 motion (see People v Perkins, 140 A.D.3d
1401, 1403 , lv denied 28 N.Y.3d 1126');">28 N.Y.3d 1126 ).
further argues that the indictment is jurisdictionally
defective . However, "[a]n indictment is
jurisdictionally defective only if it does not effectively
charge the defendant with the commission of a particular
crime - for instance, if it fails to allege that the
defendant committed acts constituting every material element
of the crime charged" (People v D'Angelo,
98 N.Y.2d 733, 734-735 ). Here, each count of the
indictment cited the pertinent Penal Law section and recited
the statutory elements of the crime and, accordingly, the
indictment was not jurisdictionally defective (see
id. at 735; People v Wilson, 144 A.D.3d 1182,
1183 ). Defendant also raises other issues with regard
to alleged defects in the indictment, challenging the factual
specificity of each count, compliance with the requirements
of CPL 200.50 (7) and the legal sufficiency of the evidence
underlying certain counts. However, these claims are
nonjurisdictional in nature and, thus, were waived by
defendant's guilty plea (see People v Brice, 146
A.D.3d 1152, 1154 , lv denied ___ N.Y.3d ___
[Apr. 20, 2017]; People v Wares, 124 A.D.3d 1079,
1080 , lv denied 25 N.Y.3d 993');">25 N.Y.3d 993 ;
People v Cole, 118 A.D.3d 1098, 1099 ). Such
claims also were expressly encompassed by defendant's
signed waivers of appeal. Defendant's remaining
contentions similarly lack merit.
J.P., Lynch, Clark and Aarons, JJ., concur.
that the ...