Opinion
1028 KA 16–01718
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Timothy W. BENNETT, Defendant–Appellant. (Appeal No. 1.)
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, the superior court information is dismissed, and the matter is remitted to Oswego County Court for proceedings pursuant to CPL 470.45.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted kidnapping in the second degree ( Penal Law §§ 110.00, 135.20 ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of aggravated family offense (§ 240.75[1] ). Defendant contends, and the People concede, that the superior court information in appeal No. 1 was jurisdictionally defective. We agree. A defendant may waive indictment and consent to be prosecuted by a superior court information (see CPL 195.20 ; People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990] ). As relevant here, "[t]he offenses named [in a superior court information] may include any offense for which the defendant was held for action of a grand jury" ( CPL 195.20 ), i.e., "the same crime as [charged in] the felony complaint or a lesser included offense of that crime" ( People v. Pierce, 14 N.Y.3d 564, 571, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ; see People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 [1991] ). Inasmuch as attempted kidnapping in the second degree is not a crime charged in the felony complaint or a lesser included offense, the superior court information is jurisdictionally defective. "That defect does not require preservation, and it survives defendant's waiver of the right to appeal and his guilty plea" ( People v. Tun Aung, 117 A.D.3d 1492, 1493, 984 N.Y.S.2d 733 [4th Dept. 2014] ). Thus, the judgment in appeal No. 1 must be reversed, the plea vacated, and the superior court information dismissed (see id. at 1492–1493, 984 N.Y.S.2d 733 ; People v. Goforth, 36 A.D.3d 1202, 1203, 830 N.Y.S.2d 877 [4th Dept. 2007], lv denied 8 N.Y.3d 946, 836 N.Y.S.2d 556, 868 N.E.2d 239 [2007] ). In light of our determination, we do not review defendant's remaining contentions raised in appeal No. 1 (see Goforth, 36 A.D.3d at 1204, 830 N.Y.S.2d 877 ).
With respect to appeal No. 2, defendant contends that reversal is required because County Court violated Judiciary Law § 295 when it had the proceedings electronically recorded without having a stenographer present. Even assuming, arguendo, that defendant's contention survives his guilty plea, we conclude that it is not preserved for our review (see People v. Rogers, 159 A.D.3d 1558, 1559, 72 N.Y.S.3d 758 [4th Dept. 2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018] ). In any event, reversal is not required because defendant failed to demonstrate that he was prejudiced by the use of the recording that was later transcribed (see id. ; see generally People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 [1995] ). Although there were some instances where recorded responses or remarks were "inaudible," we conclude that a reconstruction hearing is not required in this case for effective appellate review of defendant's contentions (cf. People v. Henderson, 140 A.D.3d 1761, 1761, 32 N.Y.S.3d 429 [4th Dept. 2016] ).
Defendant's challenge to the factual sufficiency of the plea allocution is not preserved for our review because he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Pryce, 148 A.D.3d 1625, 1625–1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; People v. Saddler, 144 A.D.3d 1520, 1520–1521, 44 N.Y.S.3d 820 [4th Dept. 2016], lv denied 28 N.Y.3d 1188, 52 N.Y.S.3d 715, 75 N.E.3d 107 [2017] ). This case does not fall within the rare exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, defendant's contention is without merit inasmuch as his " ‘yes’ and ‘no’ answers during the plea colloqu[y][did] not invalidate his guilty plea[ ]" ( People v. Russell, 133 A.D.3d 1199, 1199, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] ). To the extent that defendant's contention that he was denied effective assistance of counsel survives his plea (see generally People v. Abdulla, 98 A.D.3d 1253, 1254, 951 N.Y.S.2d 286 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ), we conclude that it is without merit (see People v. Watkins, 77 A.D.3d 1403, 1404–1405, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ).
Defendant failed to preserve for our review his contention that the court violated CPL 380.50(1) by not asking him or his counsel if they wanted to make statements at sentencing (see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 [1981] ; People v. Sharp, 56 A.D.3d 1230, 1231, 867 N.Y.S.2d 802 [4th Dept. 2008], lv denied 11 N.Y.3d 900, 873 N.Y.S.2d 276, 901 N.E.2d 770 [2008] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentence is not unduly harsh or severe.