| People v West |
| 2020 NY Slip Op 08131 [189 AD3d 1981] |
| December 31, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Allisa C. West, Appellant. |
Edward S. Graves, Indian Lake, for appellant.
Christopher C. Shambo, District Attorney, Indian Lake, for respondent.
Clark, J. Appeal from a judgment of the County Court of Hamilton County (Hoye, J.),rendered May 22, 2019, convicting defendant upon her plea of guilty of the crime of bail jumpingin the second degree.
In 2016, defendant pleaded guilty to criminal mischief in the third degree and was placed oninterim probation. As the result of a January 2017 incident, she faced new charges and a petitionalleging that she had violated the terms of her interim probation. Defendant was found to haveviolated her interim probation after a hearing, and that matter was adjourned for sentencing. InMay 2017, an agreement was reached to address sentencing in that matter and resolve the chargesarising from the January 2017 incident. As is relevant here, defendant pleaded guilty to assault inthe second degree in satisfaction of a superior court information addressing her January 2017conduct and was sentenced to a prison term of 3
Defendant failed to appear as directed, was apprehended in Florida several months later andwas then charged in an indictment with bail jumping in the second degree. Followingunsuccessful efforts to dismiss the indictment or reduce the charge, defendant pleaded guilty ascharged. County Court (Hoye, J.) sentenced defendant, as a second felony offender, to a prisonterm of 1
We affirm. Defendant argues that the indictment "does not effectively charge. . . [her] with the commission of" bail jumping in the second degree, a jurisdictionalchallenge that survives her guilty plea (People v Iannone, 45 NY2d 589, 600 [1978];accord People v Wilder, 69 NY2d 870, 872 [1987]; see People v Park, 163 AD3d 1060, 1064 [2018]). She bases thatargument upon the fact that bail jumping in the second degree requires that a defendant's failureto appear occur after having been "released from custody or allowed to remain at liberty, eitherupon bail or upon his [or her] own recognizance, upon condition that he [or she] willsubsequently appear personally in connection with a charge against him [or her] of committing afelony" (Penal Law § 215.56; see People v Wilder, 93 NY2d 352, 359[1999]). Although defendant persuasively argues that her actions did not constitute bail jumpingin the second degree,[FN*]her unchallenged guilty plea signaled her "intention not to litigate the question of [her] guilt,"which places that issue beyond our review (People v Lynn, 28 NY2d 196, 201 [1971];see People v Taylor, 65 NY2d 1, 5 [1985]; see generally People [*2]v Hill, 220 AD2d 905, 906 [1995]). What is before us iswhether the indictment was jurisdictionally defective, which occurs where the indictment allegesacts that "simply do not constitute a crime" or fails to allege acts "constituting every materialelement of the crime charged" (People v Iannone, 45 NY2d at 600; see People v Young, 100 AD3d1186, 1187-1188 [2012], lv denied 21 NY3d 1021 [2013]). In that regard, theindictment specifically cited Penal Law § 215.56 as the basis for the charge, which"operate[d] without more to constitute allegations of all the elements of the crime" (People vCohen, 52 NY2d 584, 586 [1981]; see People v D'Angelo, 98 NY2d 733, 735 [2002];People v Hummel-Parker, 171AD3d 1397, 1398 [2019]). Further, because a conviction occurs upon a plea or verdict ofguilty, but the underlying criminal action remains pending until sentencing, the indictmentalleged acts constituting bail jumping in the second degree by accusing defendant of failing toappear "in relation to a conviction" (see CPL 1.20 [13]-[16]; see e.g. People v Gilleo, 39 AD3d560, 562 [2007]). Thus, there was no jurisdictional defect in the indictment.
By pleading guilty, defendant also forfeited her arguments regarding the instructions givento, and the evidence heard by, the grand jury (see People v Guerrero, 28 NY3d 110, 115-116 [2016]; People vTaylor, 65 NY2d at 5; People vSuddard, 164 AD3d 950, 951 [2018], lv denied 32 NY3d 1178 [2019]; People v Brice, 146 AD3d 1152,1154 [2017], lv denied 29 NY3d 996 [2017]; People v Cole, 118 AD3d 1098, 1099 [2014]). Contrary todefendant's suggestion, neither the apparent desire of the parties nor our authority to takecorrective action in the interest of justice permits us to review issues forfeited by a plea of guilty(see CPL 470.15 [6]; People v Howe, 56 NY2d 622, 624 [1982]; People vStephens, 122 AD2d 606, 608 [1986], lv denied 68 NY2d 817 [1986]; People vMorris, 111 AD2d 414, 414 [1985]). Finally, we note that defendant received the minimumsentence allowed by law and, as such, any claim that it is harsh and excessive is withoutmerit.
Lynch, J.P., Mulvey and Colangelo, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant could not havecommitted bail jumping in the second degree because there was no pending felony charge againsther at the time of her nonappearance (see generally Matter of Natasha C., 80 NY2d 678,681 [1993]). The criminal action against defendant terminated upon the imposition of hersentence (see CPL 1.20 [14]-[16]), and her subsequent nonappearance was not connectedto an appeal or any other criminal action (see CPL 1.20 [18]; 460.50; compare People v Gilleo, 39 AD3d560, 562 [2007] [nonappearance between conviction and sentencing]; People vHalm, 256 AD2d 630, 631 [1998], lv denied 92 NY2d 1049 [1999] [nonappearancefollowing release on bail pending appeal]).