Opinion
2013-03-21
The PEOPLE of the State of New York, Respondent, v. David K. PORATH, Appellant.
Joseph Nalli, Fort Plain, for appellant. James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), for respondent.
Joseph Nalli, Fort Plain, for appellant. James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ.
LAHTINEN, J.
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered December 12, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Following what defendant characterized as a “crime spree” in which he “committed some burglaries,” he was charged by indictment with burglary in the second degree and petit larceny in Montgomery County. Pursuant to a plea agreement, defendant pleaded guilty to burglary in the second degree in full satisfaction of the indictment and waived his right to appeal. The plea agreement also provided that the People would not seek to file additional charges against defendant, that defendant would be sentenced to a prison term of 10 years followed by five years of postrelease supervision and restitution, and that the sentence would run concurrently with sentences previously imposed in other jurisdictions. Following a restitution hearing, defendant was sentenced as agreed and restitution in the amount of $640.50 was imposed. Defendant now appeals.
Defendant argues that neither his plea nor his waiver of the right to appeal were made knowingly and voluntarily. Inasmuch as defendant made an oral request to withdraw his plea, raising many of the points argued herein, we find that it was adequately preserved ( see People v. Green, 82 A.D.3d 1453, 1453, 918 N.Y.S.2d 756 [2011],lv. denied17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098 [2011] ). Nonetheless, this argument is unavailing. County Court apprised defendant of the consequences of his plea and the rights he was forfeiting ( see People v. Green, 82 A.D.3d at 1453, 918 N.Y.S.2d 756;People v. Champion, 20 A.D.3d 772, 773, 798 N.Y.S.2d 567 [2005] ). Defendant confirmed his understanding and further demonstrated his comprehension of the process and his rights by raising relevant concerns throughout the proceedings, each one of which was considered and appropriately addressed by the court. Defendant's failure to recall certain details of the crime is of no consequence here, as the court engaged defendant in a colloquy whereby he admitted to each of the elements of the crime ( see People v. Bridge, 71 A.D.3d 1197, 1198, 895 N.Y.S.2d 260 [2010];People v. Kaszubinski, 55 A.D.3d 1133, 1136, 865 N.Y.S.2d 772 [2008],lv. denied12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590 [2009] ). Finally, the court separately addressed the appeal waiver as a condition of the plea agreement, and defendant signed a written waiver after consultation with his attorney.
With regard to defendant's claim that the indictment was defective because it recited an incorrect date, his knowing and voluntary guilty plea constitutes a waiver of any such nonjurisdictional defect ( see People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012];People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] ). Moreover, the alleged defect was cured when the People's unchallenged request to amend the indictment to reflect the correct date was properly granted prior to entry of the guilty plea ( seeCPL 200.70[1]; People v. Slingerland, 101 A.D.3d at 1266, 955 N.Y.S.2d 690;People v. Champion, 20 A.D.3d at 774, 798 N.Y.S.2d 567). Defendant's argument regarding the severity of the negotiated sentence is precluded by his valid appeal waiver and, in any event, is wholly without merit.
ORDERED that the judgment is affirmed.