Opinion
11-03-2016
The PEOPLE of the State of New York, Respondent, v. Solomon A. WILSON, Appellant.
Kevin J. Bauer, Albany, for appellant, and appellant pro se. Chad W. Brown, Acting District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.
Kevin J. Bauer, Albany, for appellant, and appellant pro se.
Chad W. Brown, Acting District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.
CLARK, J.Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered November 1, 2012, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and conspiracy in the fourth degree.
In 2012, following his unsuccessful motion to suppress a quantity of crack cocaine discovered on his person, defendant, in full satisfaction of two pending indictments, pleaded guilty to criminal possession of a controlled substance in the third degree and conspiracy in the fourth degree and waived his right to appeal. In accordance with the plea agreement, defendant was thereafter sentenced, as a second felony offender, to an aggregate prison term of five years, followed by two years of postrelease supervision. Defendant appealed and his assigned counsel filed an Anders brief and moved to be relieved as counsel. This Court rejected the Anders brief, withheld decision and assigned new counsel to address certain issues raised by defendant in his pro se brief and any other issues disclosed in the record (123 A.D.3d 1157, 998 N.Y.S.2d 484 [2014] ).
We now affirm. Initially, we reject defendant's challenge to the validity of his waiver of appeal, as we are satisfied upon our review of the plea colloquy and the written waivers of appeal that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Ramos, 135 A.D.3d 1234, 1235, 23 N.Y.S.3d 479 [2016], lv. denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ; People v. Butler, 134 A.D.3d 1349, 1349–1350, 22 N.Y.S.3d 617 [2015], lv. denied 27 N.Y.3d 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ; People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ). The valid waiver of appeal precludes defendant's challenge to County Court's denial of his motion to suppress the crack cocaine found on his person (see People v. Spellicy, 123 A.D.3d 1228, 1230, 998 N.Y.S.2d 519 [2014], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ; People v. Tole, 119 A.D.3d 982, 983, 989 N.Y.S.2d 185 [2014] ; People v. Colon, 101 A.D.3d 1161, 1161, 955 N.Y.S.2d 434 [2012], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013] ).
Defendant further argues that count 2 of the indictment charging him with conspiracy in the fourth degree was jurisdictionally defective because it failed to allege all material elements of the crime, particularly the object crime that he and another person allegedly conspired to commit. While this argument survives both defendant's guilty plea and his valid waiver of appeal (see People v. Hansen, 95 N.Y.2d 227, 230–233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Mydosh, 117 A.D.3d 1195, 1196, 984 N.Y.S.2d 687 [2014], lv. denied 24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ; People v. Martinez, 79 A.D.3d 1378, 1379, 912 N.Y.S.2d 783 [2010], lv. denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011] ), we find no merit to it. “An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime—for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged” (People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; see People v. Slingerland, 101 A.D.3d 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] ). As relevant here, “[a] person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting ... a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.10[1] ).
Here, count 2 of the indictment charging conspiracy in the fourth degree incorporated by reference the applicable statutory provision, which reference “operates without more to constitute allegations of all the elements of the crime” (People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813 [1981] ; see People v. D'Angelo, 98 N.Y.2d at 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 ; People v. Rapp, 133 A.D.3d 979, 980, 20 N.Y.S.3d 663 [2015] ). Moreover, with respect to the object crime, count 2 of the indictment specifically set forth the same conduct alleged in count 1 of the indictment charging bribery in the second degree, a class C felony (see Penal Law § 200.03 ). Accordingly, as count 2 of the challenged indictment charged defendant with the commission of a particular crime and sufficiently apprised him of that crime (see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988] ; People v. Decker, 139 A.D.3d 1113, 1115, 30 N.Y.S.3d 751 [2016], lv. denied 28 N.Y.3d 928 [2016] ; People v. Rapp, 133 A.D.3d at 980, 20 N.Y.S.3d 663 ), it was not jurisdictionally defective.ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, DEVINE and MULVEY, JJ., concur.