Opinion
04-26-2016
Robert S. Dean, Center for Appellate Litigation, New York (Antoine Morris of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Antoine Morris of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered December 18, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 3 ½ years, unanimously affirmed.
The motion court properly denied defendant's request for a Mapp/Dunaway hearing. Defendant received specific information about the basis for his arrest, including that a police officer observed him holding what appeared to be a bag of marijuana in public view. Accordingly, defendant's general assertion that the arresting officers did not see him commit a crime was not a sworn allegation of fact sufficient to support a ground for suppression, nor did it create any factual issue warranting a hearing (see e.g. People v. France, 12 N.Y.3d 790, 879 N.Y.S.2d 36, 906 N.E.2d 1070 [2009] ).
The indictment was not jurisdictionally defective, because it charged defendant with a particular crime, and alleged that he committed acts constituting every material element of the crime (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ). Although the original indictment alleged that defendant possessed cocaine, and it is undisputed that the drug involved was actually heroin, this did not create a jurisdictional defect. Had the case proceeded to trial on a factually incorrect, unamended indictment, that may have raised issues such as variance between the indictment and the proof (see e.g. People v. Rodriguez, 190 A.D.2d 566, 593 N.Y.S.2d 222 [1st Dept.1993], lv. denied 81 N.Y.2d 1019, 600 N.Y.S.2d 207, 616 N.E.2d 864 [1993] ), but no such issues arise in the present procedural posture.
To the extent defendant challenges any nonjurisdictional defects in the indictment, they are waived by his guilty plea (see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ). In any event, the trial court properly permitted the People to amend the indictment to accurately allege that defendant possessed heroin, rather than cocaine, after reviewing the grand jury minutes and confirming that the error was clerical and that the proof before the grand jury dealt with heroin. Defendant, who had no objection to the amendment, was not prejudiced or surprised (see CPL 200.70 [1] ; People v. Acevedo, 215 A.D.2d 115, 116, 626 N.Y.S.2d 89 [1st Dept.1995], lv. denied 85 N.Y.2d 969, 629 N.Y.S.2d 729, 653 N.E.2d 625 [1995] ).
We perceive no basis for reducing the sentence.
SWEENY, J.P., SAXE, MOSKOWITZ, GISCHE, WEBBER, JJ., concur.