Opinion
11-16-2017
The PEOPLE of the State of New York, Respondent, v. Naquwan WILLIAMS, Defendant.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Before: PETERS, P.J., GARRY, DEVINE, CLARK and AARONS, JJ.
PETERS, P.J.Defendant was charged in an indictment with criminal sale of a controlled substance in the third degree. He thereafter agreed to plead guilty as charged in satisfaction of that indictment and two other pending indictments, and waived his right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 11 years in prison to be followed by three years of postrelease supervision, with that sentence to run consecutively to a prison sentence he was already serving. Defendant now appeals.
We affirm. Initially, we find that defendant's waiver of the right to appeal was valid. Supreme Court distinguished the right to appeal from those rights automatically forfeited by pleading guilty, and defendant affirmed his understanding thereof and agreed to waive the right to appeal. Defendant then executed a written appeal waiver in open court after discussing the waiver with counsel. In our view, defendant knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Mahon, 148 A.D.3d 1303, 1303, 48 N.Y.S.3d 842 [2017] ; People v. Samuel, 143 A.D.3d 1012, 1012, 38 N.Y.S.3d 445 [2016] ). Defendant's valid appeal waiver precludes his claim that the sentence was harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Caldwell, 148 A.D.3d 1468, 1468, 49 N.Y.S.3d 312 [2017] ).
Defendant's contention that his plea was not knowing, intelligent and voluntary is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see People v. McRae, 150 A.D.3d 1328, 1329, 51 N.Y.S.3d 434 [2017], lv. denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; People v. Mann, 140 A.D.3d 1532, 1533, 33 N.Y.S.3d 779 [2016] ). Moreover, defendant made no statements during the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v. Cox, 146 A.D.3d 1154, 1154, 46 N.Y.S.3d 693 [2017] ; People v. Taylor, 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lvs. denied 28 N.Y.3d 1144, 1151, 52 N.Y.S.3d 295, 302, 74 N.E.3d 680, 687 [2017] ).
We reject defendant's contention that the indictment was jurisdictionally defective. "[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime" ( People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; see People v. Franklin, 146 A.D.3d 1082, 1083–1084, 45 N.Y.S.3d 635 [2017], lvs. denied 29 N.Y.3d 946, 948, 54 N.Y.S.3d 377, 379, 76 N.E.3d 1080, 1082 [2017] ). "[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid" ( People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] [internal quotation marks and citation omitted]; accord People v. Griswold, 95 A.D.3d 1454, 1455, 944 N.Y.S.2d 346 [2012], lv. denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ). Insofar as the indictment references the specific section of the Penal Law under which defendant has been charged, we cannot conclude that the indictment was jurisdictionally defective. To the extent that defendant challenges the factual sufficiency of the indictment, this constitutes a nonjurisdictional defect and any such challenges are waived by defendant's guilty plea (see People v. Cole, 118 A.D.3d 1098, 1099, 987 N.Y.S.2d 247 [2014] ; People v. Slingerland, 101 A.D.3d 1265, 1265–1266, 955 N.Y.S.2d 690 [2012], lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). Further, any claimed defects regarding the felony complaint and/or the prior proceedings in the local criminal court are rendered academic as the valid indictment superceded those proceedings (see People v. Watson, 105 A.D.3d 1264, 1265, 963 N.Y.S.2d 600 [2013] ; People ex rel. Van Steenburg v. Wasser, 69 A.D.3d 1135, 1136, 893 N.Y.S.2d 379 [2010], lv. dismissed and denied 14 N.Y.3d 883, 903 N.Y.S.2d 338, 929 N.E.2d 401 [2010] ).
Finally, defendant's contention that County Court failed to comply with the provisions of CPL 400.21 in adjudicating him a second felony offender is unpreserved for our review as he failed to raise an objection at sentencing (see People v. Morse, 111 A.D.3d 1161, 1161, 975 N.Y.S.2d 496 [2013], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ; People v. Gathers, 106 A.D.3d 1333, 1333–1334, 965 N.Y.S.2d 246 [2013], lv. denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ). In any event, defendant was provided a special information at sentencing charging him with being a second felony offender and he thereafter admitted to the prior conviction and declined to contest the legality of the conviction.
ORDERED that the judgment is affirmed.
GARRY, DEVINE, CLARK and AARONS, JJ., concur.