| People v Maye |
| 2010 NY Slip Op 00406 [69 AD3d 1115] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelMaye, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered August 12, 2008, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts) and assault in the second degree.
In November 2007, evidence was produced before a grand jury revealing that defendant, aformer boyfriend of the victim, broke into her apartment in the City of Albany and beat her withtwo baseball bats. Defendant testified before the grand jury on his own behalf, denying theallegations and asserting that he had been with his girlfriend at the time. Defendant offered thegirlfriend as an alibi witness, but she was not called. The grand jury issued a four-countindictment charging defendant with, among other things, two counts of burglary in the firstdegree and assault in the second degree. He was convicted of these charges by a jury verdict.Defendant later accepted a negotiated sentence, waiving his right to appeal as part of thatagreement. Prior to trial, defendant moved to dismiss the indictment alleging that the instructionsgiven by the prosecutor to the grand jury with regard to his alibi were defective. County Courtdenied the motion in a thorough written decision. Defendant now appeals, arguing that theindictment was obtained in violation of his constitutional rights to due process and to indictmentby a grand jury as a result of the alleged defects.
Defendant does not claim that his waiver of appeal was not made knowingly, intelligentlyand voluntarily, and we disagree with his claim that the alleged defects in the grand juryproceedings "involve a right of constitutional dimension going to 'the very heart of the process' "that would survive the waiver (People vLopez, 6 NY3d 248, 255 [2006], quoting People v Hansen, 95 NY2d 227, 230[2000]).[FN*]Without regard to the merits of defendant's claim, the alleged defects are not of a constitutionalor jurisdictional nature, but are merely "flaws of a technical or evidentiary nature" (People vRobertson, 279 AD2d 711, 712 [2001], lv denied 96 NY2d 805 [2001]); therefore,defendant has waived his right to seek review of these matters (see People v Hansen, 95NY2d at 231; People v Stokely, 49AD3d 966, 968 [2008]; People v Robertson, 279 AD2d at 713).
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: People v Hansen(supra) involved a guilty plea rather than a waiver entered into as part of a sentencingagreement, but this is not a relevant distinction (see People v Seaberg, 74 NY2d 1, 10[1989]).