Opinion
2013-03-21
The PEOPLE of the State of New York, Respondent, v. Carlos CRUZ, Appellant.
Pamela A. Fairbanks, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Pamela A. Fairbanks, Ithaca, for appellant.Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, and EGAN JR., JJ.
, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 1, 2011, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged with promoting prison contraband in the first degree after he was found to be in possession of a folded over metal can lid with a tape handle. He ultimately pleaded guilty to attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to the agreed-upon prison term of 1 1/2 to 3 years, with the sentence to run consecutively to the prison term he was already serving. Defendant appeals.
We affirm. Inasmuch as the record before us does not indicate that defendant moved to withdraw his plea or vacate the judgment of conviction, his challenges to the factual sufficiency of the allocution and the voluntariness of his plea are unpreserved for our review ( see People v. Clemons, 96 A.D.3d 1086, 1087, 945 N.Y.S.2d 492 [2012],lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012];People v. Klages, 90 A.D.3d 1149, 1150, 934 N.Y.S.2d 259 [2011],lv. denied18 N.Y.3d 925, 942 N.Y.S.2d 464, 965 N.E.2d 966 [2012] ). Moreover, contrary to defendant's contention, we do not find that his statements during the plea allocution cast doubt upon his guilt or negated an essential element of the crime so as to trigger the narrow exception to the preservation requirement ( see People v. Board, 75 A.D.3d 833, 833, 906 N.Y.S.2d 155 [2010];People v. Coles, 13 A.D.3d 665, 666, 786 N.Y.S.2d 595 [2004] ).
While defendant's claim that the indictment was jurisdictionally defective in that it did not allege conduct constituting every element of the charged crime survives his guilty plea ( see People v. George, 261 A.D.2d 711, 713, 694 N.Y.S.2d 478 [1999],lv. denied93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938 [1999] ), it is without merit. “ ‘[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime’ ” ( People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988], quoting People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];accord People v. Slingerland, 101 A.D.3d 1265, 1266, 955 N.Y.S.2d 690 [2012];People v. Champion, 20 A.D.3d 772, 773, 798 N.Y.S.2d 567 [2005] ). To that end, “[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. 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]; [internal quotation marks and citations omitted]; accord People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002];People v. Kamburelis, 100 A.D.3d 1189, 1189–1190, 954 N.Y.S.2d 254 [2012];People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] ). Here, inasmuch as the indictment recites, among other things, the specific section of the Penal Law under which defendant had been charged, we cannot conclude that the indictment was jurisdictionally defective. To the extent that defendant challenges the factual sufficiencyof the indictment, such challenges to nonjurisdictional defects in the accusatory instrument were forfeited by his guilty plea ( see People v. Brown, 75 A.D.3d at 656, 903 N.Y.S.2d 825;People v. George, 261 A.D.2d at 713, 694 N.Y.S.2d 478).
ORDERED that the judgment is affirmed.
ROSE, J.P., LAHTINEN and EGAN JR., JJ., concur.