People v. McCrory

Full title: The PEOPLE, etc., respondent, v. George McCRORY, appellant.

Court: Supreme Court, Appellate Division, Second Department, New York.

Date published: Feb 13, 2014

114 A.D.3d 810 (N.Y. App. Div. 2014)

114 A.D.3d 810

2014 N.Y. Slip Op. 1021

Opinion

2014-02-13

The PEOPLE, etc., respondent, v. George McCRORY, appellant.

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Richard Longworth Hecht of counsel), for respondent.

WILLIAM F. MASTRO

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco and Richard Longworth Hecht of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI and ROBERT J. MILLER, JJ.

Appeal by the defendant, by permission, from an order of the Supreme Court, Westchester County (Lorenzo, J.), entered September 28, 2010, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Perone, J.) rendered April 19, 2001, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed.

The defendant contends that the indictment is jurisdictionally defective because it failed to provide him with sufficient notice of the accusations against him. However, the defendant is barred from raising this claim in his motion pursuant to CPL 440.10, as sufficient facts appear on the record to have permitted adequate review of this claim upon direct appeal from the underlying judgment, but the defendant unjustifiably failed to perfect his appeal from that judgment ( seeCPL 440.10[2][c]; People v. Cuadrado, 9 N.Y.3d 362, 365, 850 N.Y.S.2d 375, 880 N.E.2d 861;People v. Schafer, 94 A.D.3d 778, 779, 941 N.Y.S.2d 510;People v. Chiu Mei Lan Kwok, 51 A.D.3d 814, 857 N.Y.S.2d 703). In this regard, we note that the defendant's direct appeal was dismissed as abandoned in a decision and order on motion of this Court dated April 28, 2005.

In any event, the alleged defects in the indictment are not jurisdictional and, thus, any challenge to the sufficiency of the factual allegations in the indictment was waived by the defendant's plea of guilty ( see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;People v. Cooper, 88 A.D.3d 1009, 1011, 931 N.Y.S.2d 346).

Accordingly, the defendant's motion pursuant to CPL 440.10 was properly denied.