| People v Shindler |
| 2020 NY Slip Op 00327 [179 AD3d 1306] |
| January 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Shindler, Appellant. |
John B. Casey, Cohoes, for appellant.
Meagan K. Galligan, Acting District Attorney, Monticello (Kristin L. Hackett ofcounsel), for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Schick, J.), renderedMarch 3, 2017 in Sullivan County, convicting defendant upon his plea of guilty of thecrime of rape in the third degree (two counts).
Defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information (hereinafter SCI) charging him with two counts of rape in the thirddegree. The charges stemmed from incidents occurring in December 2015 and January2016, wherein defendant had sexual intercourse with the 15-year-old victim. Defendantpleaded guilty to the charged crimes and agreed to waive his right to appeal with theunderstanding that he would be sentenced to an aggregate prison term of5
Defendant primarily contends that the waiver of indictment did not comply with thestrict statutory requirements set forth in CPL 195.20, thereby requiring vacatur of hisplea and dismissal of the SCI. Specifically, defendant contends that the failure to includein the waiver of indictment or SCI a reference to the approximate time and place of thealleged offenses constitutes a jurisdictional defect, rendering the waiver of indictmentinvalid.[FN1]Preliminarily, we note that this Court, relying on People v Boston (75 NY2d 585,589 [1990]), has previously held that the failure to strictly comply with the statutoryrequirements for waiving indictment pursuant to CPL 195.20—including thefailure to include the approximate time of each offense charged in the waiver ofindictment or SCI—constitutes a jurisdictional defect that may be raised at anytime, is not subject to the preservation requirement and is not precluded by a defendant'sguilty plea or waiver of the right to appeal (see e.g. People v Walley, 176 AD3d 1513, 1514 [2019]; People v Jones, 173 AD3d1569, 1570 [2019]; Peoplev Vaughn, 173 AD3d 1260, 1261 [2019]; People v Edwards, 171 AD3d 1402, 1403 [2019]; People v Titus, 171 AD3d1256, 1256-1257 [2019]; People v Busch-Scardino, 166 AD3d 1314, 1315 [2018]).However, the Court of Appeals recently decided People v Lang (34 NY3d545 [2019]) wherein it rejected the argument that omissionof the approximate time of the charged offense in the waiver of indictment and/or SCIconstitutes a jurisdictional defect—the same argument presently raised bydefendant—specifically holding that the omission of such a fact presents a mere"technical challenge" as it constitutes "non-elemental factual information that is notnecessary for a jurisdictionally-sound indictment" (People v Lang, 34 NY3d at 568-569).[FN2] Accordingly, insofar as the subjectwaiver of indictment and SCI provided defendant with adequate notice of the date andlocation of the charged offenses, and as omission of the approximate time of the chargedoffense from the waiver of indictment and/or SCI constituted a nonjurisdictional defect(34 NY3d at 568-570) to which defendant did not object at atime when Supreme Court could have addressed the alleged deficiency, defendant'spresent challenge was forfeited by his guilty plea (34 NY3d at 568-569).
We are unpersuaded by defendant's further contention that the waiver of indictmentand his appeal waiver were otherwise invalid. The record reflects that, at the outset of theplea proceeding, defendant was informed of the terms of the plea agreement, includingthe fact that the waiver of his right to be indicted by a grand jury and his right to appealwere a condition of said agreement. He was also informed that his right to appeal wasseparate and distinct from the trial-related rights that he was automatically forfeiting bypleading guilty. Defendant thereafter, in open court and in the presence of and havingconsulted with his attorney, signed a written waiver of indictment and appeal, a separatewritten waiver of the right to appeal and a waiver of trial rights, explaining both hisappellate rights and the consequences of the waivers, and defendant confirmed that hehad discussed same with defense counsel (see People v Womack, 172 AD3d 1819, 1820 [2019], lvdenied 33 NY3d 1110 [2019]; People v Prince, 170 AD3d 1380, 1381 [2019]).Accordingly, upon review, we are satisfied that defendant's combined oral and writtenwaiver of indictment and waiver of appeal were knowingly, voluntarily and intelligentlyentered into. Finally, as the People concede in their brief, the "consecutive" periods ofpostrelease supervision imposed by Supreme Court merge by operation of law(see Penal Law § 70.45 [5] [c]; People v Jackson, 160 AD3d 1125, 1125 n [2018], lvdenied 31 NY3d 1149 [2018]) and, therefore, defendant is subject to five years ofpostrelease supervision, not the 10 years of postrelease supervision contemplated by theplea agreement and purportedly imposed by Supreme Court.[FN3]
Garry, P.J., Lynch, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:We recognize that thewaiver of indictment and the SCI may be read as a single document in order to satisfy therequirements of CPL 195.20 (see People v Walley, 176 AD3d 1513, 1514 [2019]; People v Titus, 171 AD3d1256, 1256 [2019]).
Footnote 2:Although the Court ofAppeals in Lang did not cite to or specifically overrule this Court's prior line ofcases finding that omission of the approximate time of the charged offense from thewaiver of indictment or SCI constitutes a jurisdictional defect (see CPL 195.20;People v Walley, 176 AD3d at 1514; People v Jones, 173 AD3d at 1570;People v Vaughn, 173 AD3d at 1261; People v Edwards, 171 AD3d at1403; People v Titus, 171 AD3d at 1256-1257; People v Busch-Scardino,166 AD3d at 1315), its holding nevertheless serves to overrule same.
Footnote 3:Inasmuch as anyambiguity that may have existed regarding the proper sentence to be imposed has beenresolved, we do not find it necessary to remit this matter for further clarification (see People v Chirse, 146 AD3d1031, 1033 [2017], lv denied 29 NY3d 947 [2017]; People v Dukes, 14 AD3d732, 733 [2005], lv denied 4 NY3d 885 [2005]).