Opinion
2019-1856 N CR
12-16-2021
The People of the State of New York, Respondent, v. Francesco R. Marchese, Appellant.
Nassau County Legal Aid Society (Tammy Feman, Gianpaolo Ciocco and Daniel P. Schumeister of counsel), for appellant. Nassau County District Attorney, (Andrea M. DiGregorio and Jared A. Chester of counsel), for respondent.
Unpublished Opinion
Nassau County Legal Aid Society (Tammy Feman, Gianpaolo Ciocco and Daniel P. Schumeister of counsel), for appellant.
Nassau County District Attorney, (Andrea M. DiGregorio and Jared A. Chester of counsel), for respondent.
PRESENT:: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, HELEN VOUTSINAS, JJ
Appeal from a judgment of the District Court of Nassau County, First District (David Goodsell, J.), rendered October 4, 2019. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Insofar as relevant to this appeal, defendant was charged in a felony complaint with criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). It was alleged by the arresting officer that defendant was in possession of a switchblade knife. The officer made the determination that the knife was a switchblade knife based on his observation that when "applying pressure to a lever within the handle of the knife [it] caused the blade to spring open and lock into place." Thereafter, the felony charge was reduced by notations made upon the face of the accusatory instrument (see CPL 180.50 [3] [a] [iii]) to the charge of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]), defendant pleaded guilty thereto, and the court imposed sentence at that proceeding. On appeal, defendant contends that the accusatory instrument charging him with criminal possession of a weapon in the fourth degree is jurisdictionally defective and that his guilty plea was not entered voluntarily, knowingly and intelligently.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Smalls, 26 N.Y.3d 1064, 1066 [2015] [internal quotation marks omitted]; see People v Dreyden, 15 N.Y.3d 100, 103 [2010]; People v Case, 42 N.Y.2d 98 [1977]; see also CPL 170.30, 170.35). As defendant did not waive prosecution by information, the sufficiency of the accusatory instrument must be evaluated under standards that apply to an information (see CPL 100.15, 100.40 [1]; People v Barnes, 26 N.Y.3d 986 [2015]; People v Kalin, 12 N.Y.3d 225, 228 [2009]; People v Weinberg, 34 N.Y.2d 429, 431 [1974]). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Henderson, 92 N.Y.2d 677, 679 [1999]; People v Alejandro, 70 N.Y.2d 133, 136-137 [1987]). As defendant pleaded guilty, the nonhearsay requirement was forfeited (see People v Keizer, 100 N.Y.2d 114, 122 [2003]). Further, the law does not require that an information contain the most precise words or phrases which most clearly express the thought; rather, the offense must be sufficiently alleged and the defendant provided with sufficient notice so that he or she can prepare for trial and not be tried again for the same offense (see People v Sedlock, 8 N.Y.3d 535, 538 [2007]; People v Konieczny, 2 N.Y.3d 569, 575 [2004]; People v Casey, 95 N.Y.2d 354 [2000]).
Pursuant to Penal Law § 265.01 (1), a person is guilty of criminal possession of a weapon in the fourth degree when he or she possesses a switchblade knife. A "switchblade knife," a per se weapon, is defined as "any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife" (Penal Law § 265.00 [4]).
In the instant case, the information is not jurisdictionally defective as it can reasonably be inferred that the knife in defendant's possession was a switchblade knife based upon the officer's allegations that when he applied "pressure to the lever within the handle of the knife," the blade automatically sprung open and locked in place (see Penal Law § 265.00 [4]; People v Berrezueta, 31 N.Y.3d 1091, 1092 [2018]).
"Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea... or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Peque, 22 N.Y.3d 168, 182 [2013]; see People v Conceicao, 26 N.Y.3d 375, 381 [2015]). However, a narrow exception to the preservation requirement has been recognized where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record (see People v Williams, 27 N.Y.3d 212, 219-223 [2016]; People v Louree, 8 N.Y.3d 541, 546 [2007]). Here, since defendant was sentenced in the same proceeding in which he entered his plea of guilty, he "faced a practical inability to move to withdraw [his] plea" (Conceicao, 26 N.Y.3d at 382). Therefore, defendant's claim is reviewable on a direct appeal from the judgment of conviction despite the fact that he did not move to withdraw his plea or to vacate the judgment of conviction (see People v Sougou, 26 N.Y.3d 1052, 1054 [2015]).
Trial courts have "a vital responsibility" to ensure that a defendant who pleads guilty makes a knowing, voluntary and intelligent choice among alternative courses of action (People v Harris, 61 N.Y.2d 9, 19 [1983]). They need not engage in any particular litany, however, as the Court of Appeals has "repeatedly rejected a formalistic approach to guilty pleas and [has] steered clear of a uniform mandatory catechism of pleading defendants" (People v Tyrell, 22 N.Y.3d 359, 365 [2013] [internal quotation marks omitted]; see People v Nixon, 21 N.Y.2d 338 [1967]). Moreover, the Court of Appeals has rejected the requirement that a court must enumerate all of the rights waived during the course of the plea allocution (see Sougou, 26 N.Y.3d 1052). Instead, the Court of Appeals has opted for a flexible rule that considers "all of the relevant circumstances surrounding" a plea (Harris, 61 N.Y.2d at 19 [emphasis removed]; see Conceicao, 26 N.Y.3d at 382). Thus, so long as the record as a whole "affirmatively disclose[s] that a defendant who pleaded guilty entered his plea understandingly and voluntarily," the plea will be upheld (Harris, 61 N.Y.2d at 19; see Conceicao, 26 N.Y.3d 375; Tyrell, 22 N.Y.3d at 366).
More specifically, with respect to defendant's claim raised on appeal, an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime (see People v Goldstein, 12 N.Y.3d 295, 301 [2009]; People v Munoz, 62 Misc.3d 127 [A], 2018 NY Slip Op 51859[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Nor is "[t]he court's duty to inquire further... triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to" (People v Lopez, 71 N.Y.2d 662, 666 n 2 [1988]; see Goldstein, 12 N.Y.3d at 301). Indeed, no catechism is required in connection with the acceptance of a plea (see Nixon, 21 N.Y.2d at 350) and the Court of Appeals has refused to disturb pleas even when there has been absolutely no elicitation of the underlying facts of the crime (see id.; see also Goldstein, 12 N.Y.3d at 301). It is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea (see Goldstein, 12 N.Y.3d at 301).
Here, defendant, represented by counsel, clearly understood the nature of the charge to which he was pleading and willingly entered his plea to obtain the benefit of the bargain he had struck. Nothing defendant said or failed to say in his plea allocution negated any element of the offense to which he pleaded guilty or cast doubt on his admitted guilt which would have required further inquiry by the court before accepting the plea (see Lopez, 71 N.Y.2d at 666). Defendant's plea represented "a voluntary and intelligent choice among the alternative courses of action open to" him (People v Chapman, 98 A.D.2d 640, 640 [1983] [internal quotation marks omitted]). Consequently, the record as a whole affirmatively discloses that defendant entered his plea knowingly, voluntarily and intelligently.
Defendant's contention that the plea should be vacated because all the evidence seized should have been suppressed has not been considered because it was raised for the first time in his reply brief (see People v Winkfield, 90 A.D.3d 959 [2011]) and defendant never sought to move to suppress the evidence prior to pleading guilty (see People v Fernandez, 67 N.Y.2d 686 [1986]).
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., and VOUTSINAS, J., concur.
GARGUILO, J., taking no part.