Opinion
2017–04993 S.C.I. No. 55/16
10-24-2018
The PEOPLE, etc., respondent, v. Jose E. BATISTA, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Mary Faldich of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Mary Faldich of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered March 25, 2016, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty. Prior to pleading guilty, the defendant waived his right to indictment and agreed to proceed by Superior Court Information. The defendant also waived his right to appeal.We need not determine whether the defendant's purported waiver of the right to appeal was invalid (cf. People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ; People v. Harvey, 137 A.D.3d 1162, 1163, 26 N.Y.S.3d 890 ), since the defendant's contentions would survive even a valid waiver of the right to appeal (see People v. Corr, 159 A.D.3d 918, 70 N.Y.S.3d 64 ; People v. Thompson, 150 A.D.3d 1156, 1157, 52 N.Y.S.3d 675 ; People v. Aquart, 149 A.D.3d 768, 49 N.Y.S.3d 632 ; People v. McLean, 77 A.D.3d 684, 908 N.Y.S.2d 352 ).
The defendant's challenge to the validity of his waiver of indictment was not forfeited by his plea of guilty (see People v. Boston, 75 N.Y.2d 585, 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 ; People v. Janelle, 146 A.D.3d 808, 45 N.Y.S.3d 500 ; People v. Barnhill, 130 A.D.3d 839, 839, 12 N.Y.S.3d 553 ). Further, a challenge to the validity of a waiver of indictment does not require preservation (see People v. Boston, 75 N.Y.2d at 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 ; People v. Barnhill, 130 A.D.3d at 839, 12 N.Y.S.3d 553 ). Nevertheless, contrary to the defendant's contention, his waiver of indictment was valid (see N.Y. Const., art. I, § 6 ; CPL 195.10, 195.20 ; People v. Corr, 159 A.D.3d 918, 70 N.Y.S.3d 64 ; People v. Aquart, 149 A.D.3d 768, 49 N.Y.S.3d 632 ; People v. Barnhill, 130 A.D.3d 839, 12 N.Y.S.3d 553 ; People v. Yunga, 122 A.D.3d 951, 997 N.Y.S.2d 470 ; People v. McIntyre, 178 A.D.2d 559, 559–560, 577 N.Y.S.2d 466 ).
The defendant's remaining contentions are unpreserved for appellate review, and we decline to reach them in the exercise of our interest of justice jurisdiction.
CHAMBERS, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.