| People v Guidry |
| 2018 NY Slip Op 00869 [158 AD3d 901] |
| February 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Ricky C.Guidry, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered March 3, 2016, convicting defendant upon his plea of guilty of the crime of aggravatedfamily offense.
Defendant waived indictment and agreed to be charged in a superior court information(hereinafter SCI) with the crime of aggravated family offense after he assaulted his girlfriend. Hepleaded guilty to this crime and waived his right to appeal, both orally and in writing. Inaccordance with the terms of the plea agreement, he was sentenced as a second felony offender to1
Defendant contends, among other things, that the SCI is jurisdictionally defective because itdid not allege the material elements of the crime of aggravated family offense and was filed afterhe had already entered his guilty plea. As the People concede, defendant's jurisdictionalchallenges are not precluded by his guilty plea and waiver of the right to appeal (see People v Seals, 135 AD3d 985,987 [2016]; People v Martinez, 106AD3d 1379, 1379 [2013], lv denied 22 NY3d 957 [2013]). We find, however, thatthey are lacking in merit. "A charging instrument that incorporates by reference the statutoryprovisions applicable to the crime charged has been held to allege the material elements of thecrime sufficiently to survive a jurisdictional challenge" (People v Kamburelis, 100 AD3d 1189, 1189-1190 [2012] [citationsomitted]; see People v McDuffie, 89AD3d 1154, 1155 [2011], lv denied 19 NY3d 964 [2012]; [*2]Peoplev Morales, 66 AD3d 1083, 1084 [2009]). Here, the SCI alleged that on June 10, 2015 inthe City of Saratoga Springs, Saratoga County, defendant committed the crime of assault in thethird degree under Penal Law § 120.00 (1), a specified offense as defined in PenalLaw § 240.75 (2)—the statute addressing the crime of aggravated familyoffense—against a member of the same family or household as defined in CPL 530.11 (1).These allegations were sufficient, and it was not necessary for the SCI to also contain allegationsconcerning the specific relationship that defendant had with the victim. Furthermore, althoughthe SCI bore a date that was one day after the date that defendant entered his guilty plea, thisappears to have been a clerical error, as the transcript of the plea proceedings discloses that theSCI was before County Court at the time that defendant pleaded guilty to the allegationscontained therein, and the waiver of indictment and order approving it bore the date that the pleawas entered.[FN*]Consequently, we do not find that the SCI was jurisdictionally defective.
Defendant further contends that his guilty plea was not knowing, voluntary and intelligent.Although this claim survives defendant's waiver of the right to appeal (see People v Davis, 150 AD3d1396, 1397 [2017], lv denied 30 NY3d 1018 [2017]; People v McRae, 150 AD3d 1328,1329 [2017], lv denied 29 NY3d 1093 [2017]), it has not been preserved for our reviewas the record does not reveal that defendant made an appropriate postallocution motion (see People v Millard, 147 AD3d1155, 1156 [2017], lv denied 29 NY3d 999 [2017]; People v Woods, 147 AD3d 1156,1156-1157 [2017], lv denied 29 NY3d 1089 [2017]). Furthermore, the narrow exceptionto the preservation rule is inapplicable as defendant did not make any statements during the pleacolloquy that cast doubt upon his guilt or called into question the voluntariness of his plea(see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Dubois, 150 AD3d 1562, 1563 [2017]). While defendantmade a statement during the presentence investigation suggesting that he acted in self-defense,County Court confirmed at sentencing that defendant was not raising an issue of self-defense andthat he did in fact assault the victim. Therefore, we decline to disturb the judgment ofconviction.
McCarthy, J.P., Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:It is to be noted that this is thesecond SCI that was filed. The parties agreed that the first SCI was jurisdictionally defective and,therefore, defendant's prior guilty plea to the allegations contained therein was vacated.