| People v Hernandez |
| 2009 NY Slip Op 04570 [63 AD3d 1615] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelHernandez, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered January 9, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalcontempt in the first degree and burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [v]) and burglary in the thirddegree (§ 140.20). As the People correctly concede, defendant's waiver of the right toappeal was not knowing and voluntary inasmuch as Supreme Court failed to explain that thewaiver of the right to appeal is separate and distinct from the other rights that are forfeited by theplea (see People v Lopez, 6 NY3d248, 256 [2006]). Although defendant's jurisdictional challenge to the superior courtinformation (SCI) survives the plea and, indeed, would have survived a valid waiver of the rightto appeal (see People v Heinig, 21AD3d 1297 [2005], lv denied 6 NY3d 813 [2006]), we nevertheless reject thatchallenge. According to defendant, the SCI is jurisdictionally defective because he was not heldfor the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). Therecord establishes that defendant was arraigned by the local criminal court and that the matterwas adjourned for further proceedings. There is no indication in the record that a preliminaryhearing was held, but the record does establish that Supreme Court was satisfied with the waiverof the indictment and executed an order to that effect. We thus "may presume that the matter wasproperly before that court" (People v Chad S., 237 AD2d 986 [1997], lv denied90 NY2d 856 [1997]; see People vHurd, 12 AD3d 1198, 1199 [2004], lv denied 4 NY3d 764 [2005]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Fahey, Peradotto, Carniand Green, JJ.