Opinion
109043
04-25-2019
The PEOPLE of the State of New York, Respondent, v. Michael HUMMEL–PARKER, Appellant.
Eric K. Schillinger, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Eric K. Schillinger, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.Appeal from a judgment of the County Court of Schenectady County (Sypnewski, J.), rendered September 28, 2016, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.Defendant waived indictment, pleaded guilty to a superior court information (hereinafter SCI) charging him with attempted criminal possession of a weapon in the second degree and waived his right to appeal. County Court sentenced him, in accordance with the terms of the plea agreement, to a prison term of three years followed by 1½ years of postrelease supervision. Defendant appeals.
Initially, defendant contends that the SCI is jurisdictionally defective. Specifically, defendant asserts that all material elements of attempted criminal possession of a weapon in the second degree were not set forth in the accusatory instrument as there was no reference to the weapon being loaded (see Penal Law § 265.03[1][b] ). Although this issue survives defendant's unchallenged appeal waiver and guilty plea (see People v. Brown, 163 A.D.3d 1269, 1271, 82 N.Y.S.3d 218 [2018] ), it is without merit. The specific reference to the statute in the SCI is sufficient to constitute allegations of all the elements of the crime charged in order to survive a jurisdictional challenge (see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; People v. Benn, 159 A.D.3d 1272, 1272, 73 N.Y.S.3d 678 [2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 861, 109 N.E.3d 1161 [2018] ).
Defendant also contends that the plea was not knowing, voluntary and intelligent because the factual allocution did not establish each element of the crime. Essentially, this amounts to a challenge to the factual sufficiency of the plea allocution that, despite defendant's contention to the contrary, is precluded by his unchallenged waiver of the right to appeal (see People v. Maddaloni, 166 A.D.3d 1235, 1235, 85 N.Y.S.3d 802 [2018] ; People v. Letohic, 166 A.D.3d 1223, 1223, 85 N.Y.S.3d 799 [2018], lv denied 32 N.Y.3d 1174, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2019] ). To the extent that defendant's contention constitutes a challenge to the voluntariness of the plea, which survives the appeal waiver, it is nevertheless unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, and the narrow exception to the preservation requirement is inapplicable as defendant made no statements that negated an essential element of the crime charged (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Gray, 162 A.D.3d 1248, 1248, 75 N.Y.S.3d 385 [2018] ).
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.