| People v Slingerland |
| 2012 NY Slip Op 08579 [101 AD3d 1265] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James W.Slingerland, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered October 29, 2010, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
Defendant was charged in an indictment with six counts of criminal sale or possession of acontrolled substance, narcotic drugs, occurring on May 22, 2009 in the Town of Saratoga,Saratoga County. Defendant entered a guilty plea to one count of attempted criminal sale of acontrolled substance in the third degree and, as agreed, waived his right to appeal during the pleacolloquy and in a written, signed instrument. He was sentenced, as an admitted second felonyoffender, to a two-year prison term to be followed by a period of 1½ years of postreleasesupervision. Defendant now appeals.
We affirm. Our review of the record confirms that defendant's plea and appeal waiver wereknowingly, voluntarily and intelligently entered (see People v Lopez, 6 NY3d 248, 256 [2006]; People vCallahan, 80 NY2d 273, 280 [1992]; People v Moissett, 76 NY2d 909, 910-911[1990]). Defendant argues that the indictment was facially defective in that it failed to specify thelocation, i.e., exact address, and time at which the offenses were committed. As defendant didnot raise these specific claims in his motion to dismiss the indictment (see CPL 210.20,210.25), they are unpreserved for our review and are also foreclosed by his guilty plea and appealwaiver, unless they constitute a nonwaivable jurisdictional defect, which may be raised for the[*2]first time on appeal (see People v Iannone, 45 NY2d589, 600 [1978]; People v Stauber, 307 AD2d 544, 545 [2003], lv denied 100NY2d 599 [2003]).
"An indictment is rendered jurisdictionally defective only if it does not charge the defendantwith the commission of a particular crime, by, for example, failing to allege every materialelement of the crime charged, or alleging acts that do not equal a crime at all" (People vHansen, 95 NY2d 227, 231 [2000]; see People v Iannone, 45 NY2d at 600). Theprecise address and time were not elements of any of the crimes charged and, thus, the indictment"may allege the time in approximate terms" (People v Watt, 81 NY2d 772, 774 [1993]).CPL 200.50 (6) "does not require the exact date and time" (People v Morris, 61 NY2d290, 294 [1984]) but, rather, provides—with respect to the allegation of when a crimeoccurred—that it must have been committed "on, or on or about, a designated date,or during a designated period of time" (CPL 200.50 [6] [emphasis added]). Here, the datewas given and the lack of a precise address or time on that date is, at most, a waivable facialdeficiency[FN*] and not a fatal jurisdictional defect (see People v Morris, 61 NY2d at 295; People vCox, 275 AD2d 924, 925 [2000], lv denied 95 NY2d 962 [2000]; People vNicholson, 98 AD2d 876, 876 [1983]; People v Kepple, 98 AD2d 783, 783 [1983];People ex rel. White v McMann, 8 AD2d 921 [1959], lv denied 7 NY2d 705[1959]; cf. People v Sanchez, 84 NY2d 440, 447-448 [1994]). Indeed, had defendantraised these objections before County Court, the People could have moved to amend theindictment with respect to the time and place of the crimes, provided it did not change the theoryof their prosecution (see CPL 200.70 [1]).
Likewise unpreserved is defendant's claim that the six counts in the indictment aremultiplicitous (see CPL 210.20 [1] [a]; People v Thompson, 34 AD3d 931, 932 [2006], lv denied 7NY3d 929 [2006]). This is a nonjurisdictional challenge that was forfeited by his guilty plea andencompassed by his appeal waiver (seePeople v Nichols, 32 AD3d 1316, 1317 [2006], lv denied 8 NY3d 848 [2007];People v Nelson, 266 AD2d 730, 731 [1999], lv denied 94 NY2d 865 [1999]).
Finally, defendant argues that trial counsel provided ineffective assistance due to his failureto file a motion to dismiss the indictment on statutory speedy trial grounds (see CPL30.30, 210.20 [1] [g]). As there is no evidence in the record that defendant made a motion towithdraw his plea or to vacate the judgment on this basis, the issue is unpreserved (see Peoplev Clifford, 295 AD2d 697, 698 [2002], lv denied 98 NY2d 709 [2002]); further,given the lack of any motion on this issue before County Court, the record on direct appeal isinadequate to assess its merits, which could only be addressed in a CPL article 440 motion (see People v Obert, 1 AD3d 631,632 [2003], lv denied 2 NY3d 764 [2004]).
More significantly, however, any statutory speedy trial claims were waived by defendant'sguilty plea (see People v Friscia, 51 NY2d 845, 847 [1980]; People v Brothers,50 NY2d 413, 418 [1980]), and his valid appeal waiver precludes the related claims ofineffective assistance because he does not allege that "the claimed ineffectiveness induced anotherwise [*3]knowing and voluntary guilty plea" (People vMcGuffie, 294 AD2d 617, 618 [2002], lv denied 98 NY2d 699 [2002]; see People v Lopez, 8 AD3d 819,820 [2004], lv denied 3 NY3d 708 [2004]; People v Sayles, 292 AD2d 641, 643[2002], lv denied 98 NY2d 681 [2002]). That is, the alleged ineffectiveness did notimpact the voluntariness of defendant's plea or appeal waiver (see People v Parilla, 8 NY3d 654,660 [2007]) and was therefore forfeited by his appeal waiver (see People v Garland, 69 AD3d 1122, 1123 [2010], lvdenied 14 NY3d 887 [2010]). While defendant seeks to avoid the consequences of his guiltyplea by raising the speedy trial claim in the context of an ineffective assistance rubric, "were weto consider defendant's [speedy trial] claim on the merits, we would be reviewing the veryargument that defendant waived when he pleaded guilty and waived his right to appeal"(People v Parilla, 8 NY3d at 659-660). Thus, we find that this claim "relating to thedeprivation of rights that took place before the plea was entered" (People v Hansen, 95NY2d at 230) was forfeited by defendant's valid guilty plea and appeal waiver. Defendant'sremaining claims have been reviewed and determined to be without merit.
Mercure, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Such a facial deficiency iscurable by a bill of particulars (see People v Iannone, 45 NY2d at 597), which defendantrequested in this case, and any unfulfilled obligation on the part of the People to provide the billof particulars was waived by the guilty plea.