People v. Mcduffie

Before: ROSE, J.P., MALONE JR., KAVANAGH, STEIN and McCARTHY, JJ.

James J. Brearton, Latham, for appellant.James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.Before: ROSE, J.P., MALONE JR., KAVANAGH, STEIN and McCARTHY, JJ.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 28, 2010, convicting defendant upon his plea of guilty of the crimes of attempted assault in the second degree and failure to register under the Sex Offender Registration Act.

Defendant assaulted the victim during an argument, as a result of which the victim sustained various physical injuries, including a broken jaw, broken nose, the loss of teeth and facial lacerations. When defendant, a sex offender, was arrested, it was discovered that he had failed to properly

register an address change within 10 days, as required under the Sex Offender Registration Act ( see Correction Law § 168–f[4] ).

Defendant was charged by felony complaint with the crimes of attempted assault in the second degree and failure to register under the Sex Offender Registration Act. Following his arraignment, defendant waived his right to a preliminary hearing and further waived indictment by a grand jury. Defendant pleaded guilty to both counts of the resulting superior court information and waived his right to appeal. He was thereafter sentenced, as a second felony offender, to an agreed upon term of 2 to 4 years in prison for his conviction of attempted assault in the second degree and to a concurrent term of 60 days on his conviction for failure to register under the Sex Offender Registration Act. Defendant now appeals and we affirm.

We disagree with defendant's contention—which survives his guilty plea and appeal waiver ( see People v. Cohen, 52 N.Y.2d 584, 591, 439 N.Y.S.2d 321, 421 N.E.2d 813 [1981, Gabrielli, J., concurring] )—that the superior court information was jurisdictionally defective because it failed to allege material elements of the crimes charged therein ( see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988]; People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978]; People v. Champion, 20 A.D.3d 772, 773, 798 N.Y.S.2d 567 [2005] ). Here, the charging instrument “incorporates by reference the statutory provision[s] applicable to the crime[s] intended to be charged ... [and therefore] is sufficient to apprise the defendant of the charge[s]” ( People v. Champion, 20 A.D.3d at 774, 798 N.Y.S.2d 567; see generally People v. Iannone, 45 N.Y.2d at 594–595, 412 N.Y.S.2d 110, 384 N.E.2d 656). Accordingly, the superior court information is jurisdictionally valid. To the extent that defendant raises constitutional arguments relating to his right to be prosecuted by indictment—arguments which are also reviewable notwithstanding his guilty plea and waiver of the right to appeal—we find that defendant's waiver of indictment was proper in all respects and that any such arguments are without merit ( see CPL 195.10[1]; 195.20; N.Y. Const., art. I, § 6; People v. Zanghi, 79 N.Y.2d 815, 817, 580 N.Y.S.2d 179, 588 N.E.2d 77 [1991]; People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011]; People v. Brown, 47 A.D.3d 1162, 1163, 850 N.Y.S.2d 699 [2008], lv. denied 10 N.Y.3d 838, 859 N.Y.S.2d 397, 889 N.E.2d 84 [2008] ).

Defendant's challenge to his guilty plea is not preserved for our review as he did not move to withdraw his plea or to vacate the judgment of conviction ( see People v. White, 84 A.D.3d 1641, 1642, 923 N.Y.S.2d 371 [2011]; People v. Miller, 70 A.D.3d 1120, 1120, 896 N.Y.S.2d 183 [2010], lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] ). Moreover, we are unpersuaded by his argument that the preservation exception applies, inasmuch as the record of the plea colloquy does not reveal any statements by defendant that would cast doubt upon his guilt or negate an essential element of the crimes to which he pleaded guilty ( see People v. Mandiville, 84 A.D.3d 1644, 1644, 923 N.Y.S.2d 911 [2011]; People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011], lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011]; People v. Campbell, 81 A.D.3d 1184, 1185, 917 N.Y.S.2d 419 [2011]; People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ).

We also reject defendant's argument that his appeal waiver was not knowingly, intelligently and voluntarily made. County Court adequately described the nature of the right to appeal and made it clear that such right was separate from the “ ‘panoply of trial rights automatically forfeited upon pleading guilty’ ” ( People v. Thomas, 71 A.D.3d 1231, 1231, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010], quoting People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Moreover, while defendant executed a written waiver of appeal outside of court, an adequate discussion regarding the waiver took place on the record, during which he acknowledged his signature on the written waiver, demonstrating appropriate judicial examination of defendant's knowing and voluntary decision to waive his right to appeal ( see People v. McCaskill, 76 A.D.3d 751, 752, 905 N.Y.S.2d 721 [2010]; compare People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).

Defendant's valid waiver of the right to appeal precludes our consideration of his arguments with regard to sentencing ( see People v. Spencer, 79 A.D.3d 1454, 1454, 912 N.Y.S.2d 454 [2010]; People v. Jennings, 75 A.D.3d 999, 999, 904 N.Y.S.2d 680 [2010] ). Defendant's remaining contentions have been reviewed and found to be without merit.

ORDERED that the judgment is affirmed.

ROSE, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.