Opinion
769 KA 19-01734
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Michael SHEPPARD, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of aggravated sexual abuse in the second degree ( Penal Law § 130.67 [1] [a] ). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal because County Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of that waiver and failed to identify that certain rights would survive the waiver (see People v. Jackson , 207 A.D.3d 1077, 1077, 169 N.Y.S.3d 556 [4th Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ; People v. Pace , 201 A.D.3d 1296, 1296, 158 N.Y.S.3d 663 [4th Dept. 2022], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 450, 185 N.E.3d 971 [2022] ; see generally People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ).
Contrary to defendant's contention, however, the court properly denied his motion seeking, inter alia, to dismiss the indictment on the ground that the grand jury proceeding was defective. Defendant contends that "the integrity [of the grand jury proceeding was] impaired" when the prosecutor failed to correct a police investigator's allegedly false testimony ( CPL 210.35 [5] ). Although that contention is not forfeited by the plea (see People v. Taylor , 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ), dismissal of the indictment on that ground is an "exceptional remedy" that is not warranted in this case ( People v. Darby , 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974 [1990] ; see People v. Bean , 66 A.D.3d 1386, 1386, 885 N.Y.S.2d 804 [4th Dept. 2009], lv denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010] ). Upon our review of the grand jury minutes, we conclude that "[t]here is no indication that the People knowingly or deliberately presented false testimony before the [g]rand [j]ury, and thus there is no basis for finding that the integrity of the [g]rand [j]ury proceeding was impaired ... by the alleged false testimony" ( Bean , 66 A.D.3d at 1386, 885 N.Y.S.2d 804 [internal quotation marks omitted]; see People v. Klosin , 281 A.D.2d 951, 951, 725 N.Y.S.2d 478 [4th Dept. 2001], lv denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121 [2001] ; People v. Bennett , 244 A.D.2d 923, 925, 665 N.Y.S.2d 244 [4th Dept. 1997], lv denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029 [1998], reconsideration denied 92 N.Y.2d 847, 677 N.Y.S.2d 78, 699 N.E.2d 438 [1998] ).
We further conclude that the bargained-for sentence is not unduly harsh or severe.