| People v Jennings |
| 2009 NY Slip Op 01668 [60 AD3d 694] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 72—The People of the State of New York,Respondent, v Brandon Jennings, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Cynthia A. Adimari, Lois CullenValerio, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered October 11, 2007, convicting him of criminal possession of a weapon in thesecond degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
While the defendant correctly asserts that a claim of illegality of a sentence survives theentry of a plea of guilty and the waiver of the right to appeal (see People v Nicholas, 8 AD3d 300, 300 [2004]; see alsoPeople v Seaberg, 74 NY2d 1, 9 [1989]), here, despite the manner in which the defendantframes his argument, the defendant is not, in fact or effect, challenging the legality of hissentence. Rather, he is challenging the validity of the indictment. Count one of the indictmentcharged the defendant with criminal possession of a weapon in the third degree. However, thatcount of the indictment cited Penal Law § 265.03 (3), corresponding to criminalpossession of a weapon in the second degree, and tracked the language of that section. Thedefendant claims that it was improper for the court to permit him to plead guilty to criminalpossession of a weapon in the second degree where the indictment charged him with criminalpossession of a weapon in the third degree. However, the defendant knowingly, voluntarily, andintelligently entered a plea of guilty to criminal possession of a weapon in the second degreeunder count one of the indictment, the only count at issue here. Consequently, the defendantforfeited all nonjurisdictional challenges to that count of the indictment (see People vDudley, 289 [*2]AD2d 503, 503 [2001]; People vWalker, 115 AD2d 510, 510 [1985]; see also People v Taylor, 65 NY2d 1, 5 [1985]).Count one of the indictment was not jurisdictionally defective (see generally People vIannone, 45 NY2d 589, 600 [1978]). "That count of the indictment cited the applicablesection of the Penal Law and sufficiently tracked the language thereof to afford the defendantfair notice of the charge against him" (People v Dudley, 289 AD2d at 503). Thus,because the defendant forfeited his right to challenge any nonjurisdictional defects in theindictment by entering his plea of guilty, the judgment convicting him of criminal possession ofa weapon in the second degree must be affirmed (id.). The defendant's arguments cannotbe resuscitated by couching them as a challenge to the legality of the sentence.
In light of our determination, we need not reach the defendant's remaining contention.Mastro, J.P., Florio, Covello and Belen, JJ., concur.