| People v Galunas |
| 2012 NY Slip Op 01524 [93 AD3d 892] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew C.Galunas, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Delaware County (Smith, J.),rendered October 9, 2009, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree and burglary in the third degree.
In December 2007, defendant broke into a pharmacy in the Village of Margaretville inDelaware County and stole controlled substances, including morphine and methadone. InOctober 2008, he pleaded guilty in Ulster County to three counts of criminal possession of acontrolled substance in the third degree and two counts of criminal sale of a controlled substancein the third degree. Shortly thereafter, he was indicted in Delaware County for various crimesarising from the pharmacy burglary, including two counts of criminal possession of a controlledsubstance in the first degree.
In December 2008, defendant moved to withdraw his Ulster County guilty plea. While thatmotion was pending, he also moved in Delaware County to dismiss the two criminal possessioncharges on the ground that he was being prosecuted twice for the same offenses in violation ofCPL 40.20 (1). Defendant's motion to withdraw the Ulster County guilty plea was granted, andhe thereafter moved to dismiss the Delaware County indictment in its entirety, alleging thatevidence of the guilty plea had been presented to the Delaware County grand jury. County Courtdenied both motions. Defendant subsequently pleaded guilty in Delaware County [*2]to a reduced charge of criminal possession of a controlled substancein the third degree and to one count of burglary in the third degree. He was sentenced to a prisonterm of three years followed by two years of postrelease supervision on the criminal possessionconviction, to run concurrently with a prison term of 2 to 6 years on the burglary conviction.Defendant appeals, contending that his prosecution on the Delaware County criminal possessioncounts violated his constitutional right to protection against double jeopardy, as the controlledsubstances that formed the basis of the Ulster County charges came into his possession as a resultof the alleged Delaware County crimes.[FN*]
Initially, while noting that the constitutional right to protection against double jeopardysurvives a guilty plea (see People vParilla, 8 NY3d 654, 659 [2007]; People v Hansen, 95 NY2d 227, 230 [2000]),we find that defendant waived this claim "by his express waiver of the right to appeal, which'evidenced the understanding that, by taking the plea, he knowingly, voluntarily and intelligentlygave up the right to appeal from all waivable aspects of the case' " (People v Monroig, 17 AD3d 870,871 [2005], quoting People v Muniz, 91 NY2d 570, 575 [1998] [internal brackets andemphasis omitted]; see People v Almonte, 288 AD2d 632, 633 [2001], lvs denied97 NY2d 726 [2002]). In any event, a constitutional double jeopardy claim does not arise wheneach of the challenged charges "requires proof of a fact which the other does not"(Blockburger v United States, 284 US 299, 304 [1932]; see United States vDixon, 509 US 688, 696 [1993]; People v Prescott, 66 NY2d 216, 221 [1985],cert denied 475 US 1150 [1986]; People v Gray, 300 AD2d 696, 697 [2002],lv denied 100 NY2d 561 [2003]). Here, one of the challenged Delaware County chargesalleged the possession of methadone, which was not charged in the Ulster County indictment,and the second challenged Delaware County charge, among other differences, required proof of adifferent weight than any of the Ulster County charges. Accordingly, even if the claim wereproperly before us, we would not have found that defendant's constitutional double jeopardyrights were violated (see People v Prescott, 66 NY2d at 221-222; People vMonroig, 17 AD3d at 871; People v Lanahan, 276 AD2d 906, 908 [2000], lvdenied 95 NY2d 965 [2000]).
Finally, we reject defendant's claim that the Delaware County indictment should have beendismissed in its entirety, as a review of the grand jury minutes reveals that no evidence ofdefendant's Ulster County guilty plea was presented to the Delaware County grand jury.
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant concedes that hisstatutory double jeopardy claim was forfeited by his guilty plea (see CPL 40.20;People v Prescott, 66 NY2d 216, 218 [1985], cert denied 475 US 1150 [1986];People v Putnam, 150 AD2d 925, 926 [1989]).