Opinion
No. 2009–2355 W CR.
2012-01-20
The PEOPLE of the State of New York, Respondent, v. Dominic DELVECCHIO, Appellant.
Present: LaCAVA, J.P., NICOLAI and IANNACCI, JJ.
Appeal from a judgment of the Justice Court of the Town of Eastchester, Westchester County (Domenick J. Porco, J.), rendered October 14, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a felony complaint with criminal contempt in the first degree (Penal Law § 215.51[c] ). The felony charge was reduced ( seeCPL 180.50[3][b] ) to a charge of criminal contempt in the second degree (Penal Law § 215.50), a class A misdemeanor. At the plea proceeding, with the aid of counsel, defendant signed a waiver of rights form and pleaded guilty to the charge of criminal contempt in the second degree. This court previously held the appeal in abeyance, upon a finding that the Anders brief (Anders v. California, 386 U.S. 738 [1967] ) filed by prior counsel was inadequate, and new counsel was assigned to prosecute the appeal (32 Misc.3d 66 [2011] ).
Defendant now contends that because the initial felony complaint failed to contain allegations that provided reasonable cause to believe he had committed the felony offense charged, the felony complaint was jurisdictionally defective and, thus, the Justice Court lacked the authority to reduce the charge pursuant to CPL 180.50. Given that the claim is jurisdictional in nature, it is not precluded by a waiver of the right to appeal or by defendant's guilty plea ( see People v. Oliveri, 49 AD3d 1208 [2008] ).
A felony complaint is a verified accusation filed with a local criminal court which charges a defendant with one or more felonies and “which serves to commence a criminal action but not as a basis for prosecution thereof” (CPL 1.20[8]; see alsoCPL 1.20[8]; 100.05, 100.10[5] ). A felony complaint, or a count thereof, is sufficient when it substantially conforms to the requirements of CPL 100.15 and the allegations of the factual part and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part (CPL 100.40[4] ). The factual part “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15[3] ).
In the case at bar, the factual allegations contained in the felony complaint were insufficient to provide reasonable cause to believe that defendant had committed the felony charged and they were not of such evidentiary character as to support or tend to support the felony charge ( seeCPL 100.15[3]; 100.40 [4] ). Nevertheless, the conversion of the felony complaint to the misdemeanor complaint charging defendant with criminal contempt in the second degree was in compliance with the procedures set forth in section 180.50(2)(a) of the Criminal Procedure Law since this section envisions a situation where the felony complaint is inadequate and permits the reduction of a felony charge to a misdemeanor charge. Consequently, we find that defendant's contention that the court could not reduce the felony complaint because it was legally insufficient to support the felony charge is without merit.
We agree with defendant that the record does not establish that his waiver of his right to appeal was “obtained under constitutionally acceptable circumstances” (People v. Callahan, 80 N.Y.2d 273, 283 [1992] ), as there is no indication that defendant was advised by his counsel, the court or the waiver form, as to the consequences of such a waiver that are “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 NY3d 248, 256 [2006] ). Consequently, we conclude that defendant did not knowingly, voluntarily and intelligently waive his right to appeal and, thus, we reach defendant's remaining contentions.
Defendant's contention that his guilty plea was not voluntarily entered is unpreserved for appellate review since he did not move to withdraw his plea or vacate the judgment of conviction on this ground ( see People v. Shell, 73 AD3d 1095 [2010];People v. Ross, 41 AD3d 870 [2007] ). The narrow exception to the preservation requirement is inapplicable as defendant's statements during his plea allocution neither cast doubt on his guilt nor call the voluntariness of his plea into question ( see People v. Lopez, 71 N.Y.2d 662, 666 [1988] ). In any event, a review of the record indicates that the Justice Court properly accepted defendant's plea, which was knowingly, voluntarily and intelligently entered ( see Lopez, 71 N.Y.2d at 666;People v. Ocasio, 265 A.D.2d 675, 678 [1999] ). The fact that defendant was incarcerated while awaiting trial did not render his plea coerced ( see People v.. Thompkins, 233 A.D.2d 759, 761 [1996] ). It is evident that defendant chose between two alternative courses of action ( see People v. Legault, 180 A.D.2d 912, 913 [1992] ).
Defendant also challenges the duration of the order of protection. This issue is not preserved for appellate review because he did not raise it at sentencing or move to amend the order on this ground ( seeCPL 470.05[2]; People v. Nieves, 2 NY3d 310, 314–316 [2004] ). The narrow exception to the preservation rule involving the imposition of an illegal sentence ( see Nieves, 2 NY3d at 315–316;People v. Samms, 95 N.Y.2d 52, 56 [2000] ) is inapplicable, among other things, to challenges to the duration of an order of protection ( see Nieves, 2 NY3d at 317;People v. Foster, 87 AD3d 299, 304 [2011] ), and we decline to review this issue as a matter of discretion in the interest of justice ( see People v. Curry, 52 AD3d 731 [2008] ).
In view of the foregoing, the judgment of conviction is affirmed.