| People v Brown |
| 2009 NY Slip Op 00906 [59 AD3d 1058] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LamarBrown, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Erie County (Penny M.Wolfgang, J.), entered May 30, 2006. The order denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting defendant of criminal possession of a controlledsubstance in the second degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Supreme Court properly denied defendant's motion pursuant to CPL 440.10seeking to vacate the judgment convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the second degree (Penal Law § 220.18 [1]), ascharged in a superior court information (SCI). Defendant had waived indictment of a count ofcriminal possession of a controlled substance in the first degree (§ 220.21 [1]) and insteadpleaded guilty to the charge contained in the SCI. Defendant did not appeal from the judgment ofconviction but moved to vacate it pursuant to CPL 440.10 on the grounds that the court lackedjurisdiction over the SCI and that he was denied effective assistance of counsel because defensecounsel permitted him to plead guilty despite the court's lack of jurisdiction over the SCI.Although defendant is correct that the court lacked jurisdiction to permit him to waiveindictment and "consent to be prosecuted by [SCI]" inasmuch as he was charged in theindictment with a class A felony (CPL 195.10 [1] [b]), we nevertheless conclude that he is barredfrom raising that error by way of a motion to vacate the judgment pursuant to CPL 440.10.Where, as here, "sufficient facts appear on the record of the proceedings underlying the judgmentto have permitted, upon appeal from such judgment, adequate review" of the defendant'scontentions, the court must deny a motion to vacate the judgment (CPL 440.10 [2] [c]; see People v Cuadrado, 9 NY3d362, 364-365 [2007]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski,JJ.