| People v Cane |
| 2014 NY Slip Op 08879 [123 AD3d 1301] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDerrick Cane, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Franklin County (MainJr., J.), rendered April 8, 2013, convicting defendant upon his plea of guilty of the crimeof attempted promoting prison contraband in the first degree.
In full satisfaction of a six-count indictment, defendant pleaded guilty to the reducedcharge of attempted promoting prison contraband in the first degree and waived his rightto appeal. Defendant thereafter was sentenced as a second felony offender to theagreed-upon prison term of 1
We affirm. To be sure, defendant's claim that the indictment at issue isjurisdictionally defective survives both his guilty plea and his waiver of the right toappeal (see People vMydosh, 117 AD3d 1195, 1196 [2014], lv denied 24 NY3d 963 [2014];People v Griswold, 95AD3d 1454, 1454 [2012], lv denied 19 NY3d 997 [2012]). That said,"[w]here an indictment count incorporates by reference the statutory provision applicableto the crime intended to be charged, it has been repeatedly held that this is sufficient toapprise the defendant of the charge and, therefore, renders the count jurisdictionallyvalid" (People v Moon, 119AD3d 1293, 1294 [2014], lv denied 24 NY3d 1004 [2014] [internalquotation marks and citations omitted]; accord People v Burch, 97 AD3d 987, 988 [2012], lvdenied 19 NY3d 1101 [2012]; People v Griswold, 95 AD3d at 1455; People v Brown, 75 AD3d655, 656 [2010]; see People v D'Angelo, 98 NY2d [*2]733, 735 [2002]).[FN*]
Here, defendant pleaded guilty under count 1 of the indictment to the reduced chargeof attempting promoting prison contraband in the first degree (see Penal Law§§ 110.00, 205.25 [1]). While it is true that count 1 of the indictmentdid not allege that defendant "knowingly and unlawfully" introduced dangerouscontraband into the correctional facility where he was incarcerated, said count didexpressly incorporate by reference the provisions of Penal Law § 205.25(1), thereby rendering such count jurisdictionally valid (see People v D'Angelo,98 NY2d at 735; People v Moon, 119 AD3d at 1294; People v Burch, 97AD3d at 988-989; People v Brown, 75 AD3d at 656). Finally, even assuming,among other things, that a jurisdictional impediment exists as to count 2 of theindictment, any defect in this regard would result only in the dismissal of that particularcount and would not compel dismissal of the entire indictment (see e.g. People v Garcia, 79AD3d 1248, 1249 [2010], lv denied 16 NY3d 797 [2011]; People v Pike, 63 AD3d1692, 1693 [2009], lv denied 13 NY3d 838 [2009]; People v Bethea, 61 AD3d1016, 1017 [2009]). Accordingly, we discern no basis upon which to disturbdefendant's plea of guilty to the reduced charge of attempted promoting prisoncontraband in the first degree under count 1 of the indictment.
Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Although defendantunsuccessfully attempted—after he entered his guilty plea but prior tosentencing—to file a pro se motion to dismiss the indictment upon this ground, ajurisdictional challenge of this nature may be raised for the first time upon appeal (see People v Slingerland, 101AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104 [2013]).