Opinion
2014-12-18
The PEOPLE of the State of New York, Respondent, v. Derrick CANE, Appellant.
Rebecca L. Fox, Plattsburgh, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.
Rebecca L. Fox, Plattsburgh, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered April 8, 2013, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
In full satisfaction of a six-count indictment, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal. Defendant thereafter was sentenced as a second felony offender to the agreed-upon prison term of 1 1/2 to 3 years—said sentence to run consecutively to the prison term he then was serving. Defendant now appeals, contending that the underlying indictment was jurisdictionally defective.
We affirm. To be sure, defendant's claim that the indictment at issue is jurisdictionally defective survives both his guilty plea and his waiver of the right to appeal ( see People v. Mydosh, 117 A.D.3d 1195, 1196, 984 N.Y.S.2d 687 [2014], lv. denied24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014]; People v. Griswold, 95 A.D.3d 1454, 1454, 944 N.Y.S.2d 346 [2012], lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ). That said, “[w]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid” (People v. Moon, 119 A.D.3d 1293, 1294, 990 N.Y.S.2d 98 [2014], lv. denied24 N.Y.3d 1004, ––– N.Y.S.2d ––––, –––N.E.3d –––– [2014] [internal quotation marks and citations omitted]; accord People v. Burch, 97 A.D.3d 987, 988, 948 N.Y.S.2d 742 [2012], lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012]; People v. Griswold, 95 A.D.3d at 1455, 944 N.Y.S.2d 346; People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010]; see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ).
Although defendant unsuccessfully attempted—after he entered his guilty plea but prior to sentencing—to file a pro se motion to dismiss the indictment upon this ground, a jurisdictional challenge of this nature may be raised for the first time upon appeal ( see People v. Slingerland, 101 A.D.3d 1265, 1266, 955 N.Y.S.2d 690 [2012], lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ).
Here, defendant pleaded guilty under count 1 of the indictment to the reduced charge of attempting promoting prison contraband in the first degree ( seePenal Law §§ 110.00, 205.25[1] ). While it is true that count 1 of the indictment did not allege that defendant “knowingly and unlawfully” introduced dangerous contraband into the correctional facility where he was incarcerated, said count did expressly incorporate by reference the provisions of Penal Law § 205.25(1), thereby rendering such count jurisdictionally valid ( see People v. D'Angelo, 98 N.Y.2d at 735, 750 N.Y.S.2d 811, 780 N.E.2d 496; People v. Moon, 119 A.D.3d at 1294, 990 N.Y.S.2d 98; People v. Burch, 97 A.D.3d at 988–989, 948 N.Y.S.2d 742; People v. Brown, 75 A.D.3d at 656, 903 N.Y.S.2d 825). Finally, even assuming, among other things, that a jurisdictional impediment exists as to count 2 of the indictment, any defect in this regard would result only in the dismissal of that particular count and would not compel dismissal of the entire indictment ( see e.g. People v. Garcia, 79 A.D.3d 1248, 1249, 911 N.Y.S.2d 723 [2010], lv. denied16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011]; People v. Pike, 63 A.D.3d 1692, 1693, 880 N.Y.S.2d 832 [2009], lv. denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009]; People v. Bethea, 61 A.D.3d 1016, 1017, 874 N.Y.S.2d 920 [2009] ). Accordingly, we discern no basis upon which to disturb defendant's plea of guilty to the reduced charge of attempted promoting prison contraband in the first degree under count 1 of the indictment.
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., McCARTHY, DEVINE and CLARK, JJ., concur.