| People v Dennis |
| 2009 NY Slip Op 06742 [66 AD3d 1058] |
| October 1, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick A.Dennis, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered July 2, 2008, convicting defendant upon his plea of guilty of the crime of promotingprison contraband in the first degree.
Pursuant to the terms of a plea agreement, defendant pleaded guilty to a superior courtinformation charging him with promoting prison contraband in the first degree and waived hisright to appeal. County Court sentenced defendant to a prison term of 1 to 3 years and defendantnow appeals.
We affirm. Defendant argues that his waiver of the right to appeal was invalid, but heexecuted a sworn statement in support of the plea agreement which included the appeal waiverand confirmed that he had discussed the agreement with counsel. He also stated on the recordthat he understood his right to appeal, was waiving it voluntarily and had no questions for eitherhis attorney or County Court regarding the issue. Under these circumstances, defendant's appealwaiver was knowing, voluntary and intelligent (see People v Gilmour, 61 AD3d 1122, 1123 [2009], lvdenied 12 NY3d 925 [2009]; People v Getter, 52 AD3d 1117, 1118 [2008]).
Defendant's next argument, that his waiver of indictment was invalid given the absence[*2]of evidence that a local criminal court held him over forgrand jury action, is a jurisdictional one which survives his appeal waiver and guilty plea(see CPL 195.10 [1] [a]; People v Boston, 75 NY2d 585, 589 n [1990];People v Libby, 246 AD2d 669, 670 [1998]). Nevertheless, the fact that the case hadbeen transferred to County Court evidences that defendant had been held for action by the grandjury, and County Court's order approving the waiver of indictment states that CPL 195.10 wascomplied with (see CPL 180.30, 180.70; People v Barber, 280 AD2d 691,692-693 [2001], lv denied 96 NY2d 825 [2001]; People v Chad S., 237 AD2d986 [1997], lv denied 90 NY2d 856 [1997]). Given the presumption of regularityaccorded to judicial proceedings and defendant's failure to submit any proof that would call thatpresumption into question, we conclude that the waiver of indictment was valid (see People vWashington, 138 AD2d 857, 858 [1988]).
Finally, defendant's challenge to the factual sufficiency of the plea allocution is precluded byhis appeal waiver, as "nothing in the plea allocution casts doubt on defendant's guilt, negates anessential element of the crime to which he pleaded, or otherwise calls into question thevoluntariness of the plea" (People vJackson, 30 AD3d 824, 825 [2006]; see People v Hyson, 56 AD3d 890, 891 [2008], lv denied12 NY3d 758 [2009]).
Spain, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.