| People v McDuffie |
| 2011 NY Slip Op 07756 [89 AD3d 1154] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rasheen M.McDuffie, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), renderedJuly 28, 2010, convicting defendant upon his plea of guilty of the crimes of attempted assault in thesecond degree and failure to register under the Sex Offender Registration Act.
Defendant assaulted the victim during an argument, as a result of which the victim sustained variousphysical injuries, including a broken jaw, broken nose, the loss of teeth and facial lacerations. Whendefendant, a sex offender, was arrested, it was discovered that he had failed to properly register anaddress change within 10 days, as required under the Sex Offender Registration Act (seeCorrection Law § 168-f [4]).
Defendant was charged by felony complaint with the crimes of attempted assault in the seconddegree and failure to register under the Sex Offender Registration Act. Following his arraignment,defendant waived his right to a preliminary hearing and further waived indictment by a grand jury.Defendant pleaded guilty to both counts of the resulting superior court information and waived his rightto appeal. He was thereafter sentenced, as a second felony offender, to an agreed upon term of 2 to 4years in prison for his conviction of attempted assault in the second degree and to a concurrent term of60 days on his conviction for failure to register under the Sex Offender Registration Act. Defendantnow appeals and we affirm.[*2]
We disagree with defendant's contention—whichsurvives his guilty plea and appeal waiver (see People v Cohen, 52 NY2d 584, 591 [1981,Gabrielli, J., concurring])—that the superior court information was jurisdictionally defectivebecause it failed to allege material elements of the crimes charged therein (see People v Ray,71 NY2d 849, 850 [1988]; People v Iannone, 45 NY2d 589, 600 [1978]; People v Champion, 20 AD3d 772,773 [2005]). Here, the charging instrument "incorporates by reference the statutory provision[s]applicable to the crime[s] intended to be charged . . . [and therefore] is sufficient toapprise the defendant of the charge[s]" (People v Champion, 20 AD3d at 774; seegenerally People v Iannone, 45 NY2d at 594-595). Accordingly, the superior court information isjurisdictionally valid. To the extent that defendant raises constitutional arguments relating to his right tobe prosecuted by indictment—arguments which are also reviewable notwithstanding his guiltyplea and waiver of the right to appeal—we find that defendant's waiver of indictment was properin all respects and that any such arguments are without merit (see CPL 195.10 [1]; 195.20;NY Const, art I, § 6; People v Zanghi, 79 NY2d 815, 817 [1991]; People v Davis, 84 AD3d 1645, 1646[2011], lv denied 17 NY3d 815 [2011]; People v Brown, 47 AD3d 1162, 1163 [2008], lv denied 10NY3d 838 [2008]).
Defendant's challenge to his guilty plea is not preserved for our review as he did not move towithdraw his plea or to vacate the judgment of conviction (see People v White, 84 AD3d 1641, 1642 [2011]; People v Miller, 70 AD3d 1120, 1120[2010], lv denied 14 NY3d 890 [2010]). Moreover, we are unpersuaded by his argument thatthe preservation exception applies, inasmuch as the record of the plea colloquy does not reveal anystatements by defendant that would cast doubt upon his guilt or negate an essential element of thecrimes to which he pleaded guilty (see Peoplev Mandiville, 84 AD3d 1644, 1644 [2011]; People v Richardson, 83 AD3d 1290, 1291 [2011], lv denied17 NY3d 821 [2011]; People vCampbell, 81 AD3d 1184, 1185 [2011]; People v Cintron, 62 AD3d 1157, 1158 [2009], lv denied 13NY3d 742 [2009]).
We also reject defendant's argument that his appeal waiver was not knowingly, intelligently andvoluntarily made. County Court adequately described the nature of the right to appeal and made it clearthat such right was separate from the " 'panoply of trial rights automatically forfeited upon pleadingguilty' " (People v Thomas, 71 AD3d1231, 1231 [2010], lv denied 14 NY3d 893 [2010], quoting People v Lopez, 6 NY3d 248, 257[2006]). Moreover, while defendant executed a written waiver of appeal outside of court, an adequatediscussion regarding the waiver took place on the record, during which he acknowledged his signatureon the written waiver, demonstrating appropriate judicial examination of defendant's knowing andvoluntary decision to waive his right to appeal (see People v McCaskill, 76 AD3d 751, 752 [2010]; comparePeople v Callahan, 80 NY2d 273, 283 [1992]).
Defendant's valid waiver of the right to appeal precludes our consideration of his arguments withregard to sentencing (see People vSpencer, 79 AD3d 1454 [2010]; People v Jennings, 75 AD3d 999 [2010]). Defendant's remainingcontentions have been reviewed and found to be without merit.
Rose, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.