Opinion
2012-11-21
The PEOPLE of the State of New York, Respondent, v. Quayvon M. YOUNG, Appellant.
Keeley A. Maloney, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 22, 2011, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
Defendant was involved in a brutal attack and robbery of a man in a parking lot in the City of Albany on the evening of June 13, 2010. A grand jury handed up a five-count indictment jointly charging defendant and two codefendants with assault in the first degree (two counts), robbery in the first degree (two counts) and robbery in the second degree. Pursuant to a plea agreement, which also satisfied an unrelated robbery, defendant entered a guilty plea to a single count of first degree robbery, fully admitting his role in the charged crimes. Defendant also unqualifiedly waived his right to appeal his conviction and sentence, both orally during a thorough colloquy and in a written appeal waiver signed in open court. Sentenced to a 13–year term of imprisonment (one year less than the agreed-upon sentence) and five years of postrelease supervision, defendant now appeals.
Defendant's primary contention is that the indictment was jurisdictionally defective because it did not include his name in the body of each count of the joint indictment. Defendant did not raise this specific claim in his pretrial motion to dismiss the indictment ( seeCPL 210.20[2]; 210.25) and, thus, to the extent that it is a challenge to the sufficiency of the factual allegations in or facial validity of the indictment, it is a waivable defect which was not preserved for appellate review ( see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978];People v. Halpin, 261 A.D.2d 647, 647, 691 N.Y.S.2d 579 [1999],lv. denied93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102 [1999] ). Defendant argues that this claimed jurisdictional defect in the indictment may be raised for the first time on appeal and is not waived by a guilty plea or appeal waiver ( see People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773;People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;People v. Simmons, 27 A.D.3d 786, 786–787, 811 N.Y.S.2d 460 [2006],lv. denied7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259 [2006];People v. Sayles, 292 A.D.2d 641, 642, 739 N.Y.S.2d 475 [2002],lv. denied98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235 [2002] ). We disagree, as “an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime ... [as where] the acts it accuses [the] defendant of performing simply do not constitute a crime, or it fails to allege that a defendant committed acts constituting every material element of the crime charged” ( People v. Iannone, 45 N.Y.2d at 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [internal citation omitted] ).
The indictment here satisfies the requirements of CPL 200.50 as to form and content. Each count contains a title correctly naming defendant and two codefendants; the body of every count effectively alleges each defendant's commission of a designated offense at a date, time, place and in a manner specified. The title collectively denominates all three named codefendants as “defendant” rather than “defendants,” and the body of each count charges each “defendant” with the specified crime, thus adopting in the allegations of every count each named “defendant” in the title, without listing their individual names; this is, at most, a minor defect and not a jurisdictional defect ( see People v. Brothers, 66 A.D.2d 954, 954–955, 411 N.Y.S.2d 714 [1978];Downey v. Hale, 67 F.2d 208, 208 [1st Cir.1933],cert. denied291 U.S. 662, 54 S.Ct. 438, 78 L.Ed. 1053 [1934];Franco v. Walsh, 2002 WL 596355, *11–12, 2002 U.S. Dist. LEXIS 6852, *32–33 [S.D.N.Y.2002],affd.73 Fed.Appx. 517, 2003 WL 22056234 [2d Cir.2003] ). The CPL does not require that a defendant's individual name be set forth in each count of the indictment where, as here, the defendant's name is included in the title and it is clear that the count alleges the defendant's commission of the specified crime ( seeCPL 200.50[7][a]; Downey v. Hale, 67 F.2d at 208;People v. Brothers, 66 A.D.2d at 955, 411 N.Y.S.2d 714;People v. Muhammad, 2009 N.Y. Slip Op. 31474[U], 2009 WL 2029571 [Sup. Ct. Kings County 2009];People v. Bush, 2008 N.Y. Slip Op. 30412[U], 2008 WL 475902 [Sup. Ct. Kings County 2008];People v. Graham, 2007 N.Y. Slip Op. 31856[U], 2007 WL 2174743 [Sup. Ct. Kings County 2007] ).
Defendant's assertion that the counts of the indictment failed to detail the specific role he played in these crimes is an unpreserved challenge to the sufficiency of the factual allegations that defendant waived by his guilty plea and appeal waiver; it is not a nonwaivable fatal defect ( see People v. Iannone, 45 N.Y.2d at 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656). “The People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction ... is academic” ( People v. Guidice, 83 N.Y.2d 630, 637, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994];see People v. Rivera, 84 N.Y.2d 766, 769, 771, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ). Moreover, defendant in fact requested this information, which the People supplied in their answers to the bill of particulars, specifying that they intended to prove that defendant acted both as a principal and as an accomplice ( seeCPL 200.95[1] ). Thus, the indictment fulfilled the statutory mandates ( seeCPL 200.50) as well as the purposes of an indictment, including fair notice of the accusations against defendant so that he could prepare a defense ( see People v. Iannone, 45 N.Y.2d at 594–595, 598–599, 412 N.Y.S.2d 110, 384 N.E.2d 656).
Defendant's claims that he was ineffectively represented by counsel do not implicate the voluntariness of his guilty plea and, thus, are precluded by his valid waiver of appeal ( see People v. Speranza, 96 A.D.3d 1164, 1165, 945 N.Y.S.2d 817 [2012] ). In any event, counsel's failure to challenge the sufficiency of the indictment was not deficient, as the indictment is demonstrably sufficient, and failure to make an argument “that has little or no chance of success” cannot be faulted ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Likewise, given that defendant's prior felony conviction ( People v. Young, 94 A.D.3d 1291, 942 N.Y.S.2d 379 [2012],lv. denied19 N.Y.3d 1030, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ) precluded youthful offender status, counsel's failure to pursue that status was appropriate ( seeCPL 720.10[2] ). Finally, defendant's challenge to the sentence as harsh and excessive is foreclosed by his valid guilty plea and waiver of appeal ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant's remaining contentions lack merit.
ORDERED that the judgment is affirmed.